The loss of a loved one is always a difficult life stage that, along with emotional pain, raises some very practical questions. One of the most pressing of these is the distribution of inherited property.

Inheritance in Ukraine is carried out either by will or by law. In the case of intestate succession, the key principle is the order of priority, which establishes the priority of certain heirs’ rights over others.

In accordance with Articles 1261–1265 of the Civil Code of Ukraine, intestate succession follows this order of priority:

• first order—the decedent’s children (including those conceived during the decedent’s lifetime and born after his or her death), the surviving spouse, and the parents;
• second order—full siblings, paternal and maternal grandparents;
• third order—uncles and aunts;
• fourth order—persons who lived with the decedent as part of the same household for at least five years prior to the opening of the estate;
• fifth order—other relatives up to and including the sixth degree of kinship, as well as the decedent’s dependents.

At the same time, current civil law allows for deviations from the formal order of succession.

Changing the Order of Inheritance: What Does the Law Allow?

Article 1259 of the Civil Code of Ukraine provides for the possibility of changing the order of succession.

Contractual Procedure

Part 1 of Article 1259 of the Civil Code of Ukraine allows the order of succession to be changed through a notarized agreement between the interested heirs.

Such an agreement:

• is entered into after the opening of the estate but before the expiration of the six-month period for accepting the inheritance;
• may not violate the rights of heirs who are not parties to it;
• may not infringe upon the rights of persons to a mandatory share.

In practice, this is an ideal tool for preserving family relationships and avoiding the costs of lengthy litigation.

Judicial Proceedings

If there is no agreement among the heirs, the judicial procedure for changing the order of succession applies.

Pursuant to Part 2 of Article 1259 of the Civil Code of Ukraine, an heir of a subsequent order may, by court decision, be admitted to the inheritance alongside heirs of a preceding order, provided they prove that they cared for the decedent over a long period of time, provided financial support, and offered other substantial assistance, and that the decedent was in a helpless state due to advanced age, serious illness, or disability.

What exactly must be proven in court

The Supreme Court’s case law is consistent (rulings of February 18, 2019, in Case No. 569/18047/17-c (Proceedings No. 61-40302sv18), dated March 1, 2021, in Case No. 233/5990/18 (Proceedings No. 61-19232sv19), dated March 17, 2021, in Case No. 200/12980/14 (Proceedings No. 61-14159sv19), dated April 22, 2021, in Case No. 331/6453/18 (Proceedings No. 61-380sv21), dated October 30, 2023, in Case No. 753/16113/20 (Proceedings No. 61-2552sv23) and requires proof of the concurrence of five circumstances:

1) the provision of care for the heir, that is, the provision of non-material services (communication, advice and counseling, holiday greetings, etc.);

2) providing material support to the decedent (providing financial assistance that served as the primary means of subsistence, paying for utilities and medications, and purchasing necessary personal items for the sick person);

3) providing any other assistance to the decedent, that is, assistance that has a tangible form—cleaning the premises, preparing meals, and repairing the apartment;

4) the prolonged duration of the actions specified in items 1–3;

5) the testator’s helpless condition.

Helpless State: A Key Condition

The concept of “helpless state” is elaborated in paragraph 6 of Resolution No. 7 of the Plenum of the Supreme Court of Ukraine dated May 30, 2008, “On Judicial Practice in Inheritance Cases” and numerous resolutions of the Supreme Court dated June 1, 2020, in Case No. 431/5445/19 (Proceedings No. 61-6789sv20), dated October 21, 2021, in Case No. 401/2614/17 (Case No. 61-14759sv20), dated September 20, 2022, in Case No. 372/3988/20-ts (Case No. 61-5062sv22), dated January 27, 2023, in Case No. 712/6646/21 (Proceedings No. 61-12493sv22), dated March 22, 2023, in Case No. 753/10668/19 (Proceedings No. 61-11248sv22), dated June 28, 2023, in Case No. 691/1559/18 (Proceedings No. 61-1917sv23).

A state of helplessness is understood to mean a condition of a person caused by advanced age, serious illness, or disability, in which the person is unable to independently provide for their own living conditions and requires outside care, assistance, and support.

However:

• the statements of the plaintiff and witnesses alone are insufficient;
• admissible evidence includes relevant medical records, conclusions of forensic medical experts, and court decisions declaring a person legally incapacitated or partially legally incapacitated.

Why do courts most often deny these claims?

Courts deny claims, in particular, if:

• the decedent independently provided for their own living arrangements, moved about the apartment on their own, and prepared their own meals;
• the decedent was employed and received a salary, or received a pension, and therefore did not require financial assistance;
• the decedent received charitable assistance in the form of cash deposited to a bank card, as well as food, medication, and hygiene supplies; received home care services; and was assigned a social worker from the Social Assistance Center;
• There are no medical prescriptions for medications, and the provided receipts for the purchase of medications at pharmacies do not indicate who paid for them, who received them, or the necessity of such expenditures;
• No evidence was provided of the purchase of medications or items (clothing) for the decedent;
• No evidence was provided of permanent residence with the decedent, who had been declared legally incapacitated;
• The testator’s helpless state was confirmed only a few days before his death;
• The medical records do not allow for determining the period during which the decedent was in a helpless state;
• the medical records provided contain no entries indicating that the decedent required outside care;
• The testator’s advanced age and age-related illnesses do not, in and of themselves, indicate a need for special care or the testator’s inability to independently meet his or her own basic needs;
• the issue of the need for third-party supervision, care, or assistance during the patient’s lifetime was not brought before either the medical-social expert commission or the medical advisory commission;
• The plaintiff received compensation from the state for services provided to the decedent in accordance with Resolution No. 859 of the Cabinet of Ministers of Ukraine dated September 23, 2020, “On Approval of the Procedure for the Appointment and Payment of Compensation to Individuals Who Provide Social Care Services on a Non-Professional Basis”;
• the plaintiff’s expenses for the decedent’s funeral are not related to the decedent’s support due to his or her helpless condition, which should have been provided during the decedent’s lifetime.

When do courts rule in favor of plaintiffs?

At the same time, case law contains positive examples where plaintiffs have succeeded in proving the decedent’s helpless state, constant care and assistance over the years, and full financial support of the decedent.

By a ruling of the Supreme Court dated November 21, 2018, in Case No. 641/13649/14-c, the decision of the Kominternovsky District Court of Kharkiv dated June 30, 2016, and the decision of the Kharkiv Regional Court of Appeal dated September 13, 2016, were left unchanged with respect to the resolution of the claims regarding the change in the order of inheritance rights. The courts evaluated the medical records submitted by the plaintiff and the witness testimony, and established that the decedent was a Group II disabled person and was in poor health due to a stroke that occurred in 2008 and led to a number of other illnesses, including heart disease. In the final years of his life prior to his death in 2014, the decedent required regular inpatient treatment; during those periods, the plaintiff was the sole caregiver. Consequently, the court granted the plaintiff (a fourth-order heir) the right to inherit alongside the first-order heirs.

By a ruling of the Supreme Court dated September 26, 2019, the decision of the Malynovsky District Court of Odessa dated June 7, 2018, and the ruling of the Odessa Court of Appeals dated May 16, 2019, in Case No.521/6358/17. Based on medical documents (the inpatient’s medical record, CT scans of the brain and abdominal organs, receipts, doctors’ prescriptions, and referrals for CT scans), and the expert opinion of the judicial-medical examination commission, it was established that during the last months of his life (at least more than half a year), the deceased suffered from a number of diseases. The person’s death resulted from a cerebral coma caused by the spread of the tumor—cancer of the left lung. At the advanced stage of the tumor, given the severity of the disease, the decedent was in a helpless state and required outside care. Furthermore, the case materials and witness testimony confirmed that the plaintiffs fully assumed guardianship of the decedent, were constantly by his side, cared for him, managed his treatment, financially supported him, and provided him with all other necessary assistance; they bore all financial expenses related to his treatment, care, ensuring normal living conditions, and his funeral. Consequently, the court’s decision amended the order in which the plaintiffs, as second-order heirs, were to inherit following the decedent’s death, recognizing their right to inherit alongside the defendant, the first-order heir.

By a ruling of the Supreme Court dated May 27, 2020, the ruling of the Kyiv Court of Appeals dated July 1, 2019, in Case No.755/8930/18 and changed the order of inheritance from the fourth class under the law to the second class under the law, alongside the heirs of that class. In particular, the court took into account that at the time the couple began living together, the decedent was 75 years old, which, according to the World Health Organization’s age classification, is considered old age. The deceased was a retiree, suffered from a number of illnesses, and her health had deteriorated over the years. The court was provided with excerpts from her medical history and her inpatient medical record, which established that the decedent had been in a coma for an extended period. While the decedent was in a comatose state, the plaintiff provided her with constant care, medication, and tube feeding. The plaintiff also arranged for the decedent’s funeral.

By a ruling of the Supreme Court dated June 18, 2020, in Case No.565/1046/16-c, the Supreme Court upheld the decision of the Kuznetsov City Court of Rivne Oblast dated October 24, 2017, and the ruling of the Rivne Oblast Court of Appeals dated March 27, 2018. In this case, the court took into account extensive medical documentation, which indicated that the decedent required assistance from others and outpatient hemodialysis treatment (2–3 times a week), as well as repeated inpatient and rehabilitation treatment at medical facilities. In addition, by Decision No. 58 of the Executive Committee of the Kuznetsov City Council of the Rivne Region dated February 22, 2007, the decedent’s application for the appointment of an assistant to help him exercise his rights and fulfill his obligations was considered, and, pursuant to Article 78 of the Civil Code of Ukraine, the plaintiff was registered as the testator’s assistant. The court concluded that from 2006 until his death in 2008, the decedent was in a helpless state caused by a serious illness. Witness testimony also confirmed that the plaintiff, living with the decedent as part of the same household, had cared for him for a long time, provided for him financially and with all his needs, accompanied him several times a week for hemodialysis, and provided other assistance he required. Consequently, the courts found legal grounds to change the plaintiff’s order of inheritance under the law from the fourth order and to recognize her right to inherit alongside the heirs who are called to inherit.

By a ruling of the Supreme Court dated June 5, 2024, the ruling of the Kyiv Court of Appeals dated July 3, 2023, in Case No.357/2432/22 and granted the claim of the brother, a second-order heir at law, to grant him the right to inherit alongside the decedent’s daughter, a first-order heir at law. The court took into account the following evidence: a certificate accompanying the Medical and Social Expertise Commission’s examination report, the decision of the Bila Tserkva City and District Court of Kyiv Oblast dated February 25, 2010, which declared the decedent legally incapacitated, established guardianship over him, and appointed the plaintiff as guardian; numerous conclusions by medical commissions of the healthcare facility regarding the need for constant third-party care for a Group I disabled person beginning in 2010; an extract from the inpatient’s medical record regarding the need for constant third-party supervision. The plaintiff provided evidence that the decedent was provided with necessary medications, food, and clothing, that utility bills were paid, and that the decedent had not received a pension since 2008. At the same time, there was no evidence that the decedent had personal funds sufficient to support himself from 2008 through June 2017, nor sufficient funds to independently provide for his own needs from June 2017 until the date of his death in 2021. Furthermore, the defendant resided outside Ukraine during this period and did not provide the court with evidence that she personally provided financial assistance to her father.

By a ruling of the Lviv Court of Appeals dated April 4, 2024, the decision of the Halytskyi District Court of Lviv dated November 9, 2023, in Case No. 466/10612/19 was upheld. In this case, the testator’s incapacity was proven by the testator’s medical records, inpatient records, and the conclusion of a forensic psychiatric examination. The court established that, due to toxic brain damage and cognitive impairments, the decedent was unable to dispose of the inherited funds held in his bank accounts. To purchase alcohol, the decedent—who was unemployed and had no steady income—would remove items from the apartment. At the same time, the plaintiff spent significant amounts of his own money on medication, regular detoxification treatments, food, and household supplies for the decedent. In addition, the plaintiff cared for him: he called the family doctor and a psychiatrist, organized and paid for detoxification, monitored the testator’s medication intake, communicated with him constantly, cleaned the apartment, did the testator’s laundry, and prepared his meals. Given the significant and constant excessive physical and mental strain that the plaintiff endured while caring for his brother—as confirmed by medical records, the conclusion of a forensic psychiatric examination, and witness testimony regarding the symptoms of the illnesses from which the decedent suffered, the period during which the plaintiff cared for the decedent (from January 2014 to December 2016) was recognized by the court as a prolonged period. The court granted the claim and awarded the second-order heir by law the right to inherit alongside the first-order heirs by law.

Conclusion

Changing the order of inheritance is the exception, not the rule. The court does not rely on an abstract sense of justice but requires proper and admissible evidence.

Before filing a lawsuit, you should honestly answer the following questions:

• Do you have medical records?
• Are the expenses documented?
• Was the care provided over a long period?
• Can you prove the state of helplessness specifically during the claimed period?

Only if the answers to these questions are affirmative is there a chance of a favorable resolution of the legal dispute.

Finally, it is worth noting that in the draft Civil Code of Ukraine (the Private Law Code), Article 1755 addresses the issue of changing the order of inheritance rights; its content is identical to Article 1259 of the current Civil Code of Ukraine. This is a positive development given the existing case law, which can be applied if the new Code is adopted.