Bulletin of Kharkiv National University of Internal Affairs (Dec 2024)
Specific features of succession of a share in the right to joint tenancy
Abstract
The article is focused on clarifying specific features of the succession of a share in the right to joint tenancy, which is done in two stages. First, there is transformation of the legal regime of property – joint tenancy is modified into tenancy in common. And only after that, the share of the deceased co-owner is acquired by his/her lawful heirs within the inheritance procedure. Due to this fact, the author of the article has expressed own position that the object of succession is a share in the right to tenancy in common, but not to joint tenancy. If there is no disputes, the registration of the share of the deceased co-owner should be carried out by his/her lawful heirs under a notarial procedure, but not by applying to the court with a claim to determine the share in the right to joint tenancy. The legal presumption of shares’ equality in the right to joint tenancy in case of the death of one of the co-owners cannot be refuted on the basis of the agreement between the co-owners or by the court decision. It is grounded by the fact that hereditary legal relations arise as a result of the death of a participant in joint tenancy, and therefore the division of such property is carried out without his/her participation. If other co-owners in the right to joint tenancy are involved into succession procedure, then the provision on the preferential right of certain lawful heirs to allocate inherited property in kind shall be applied. This preferential right is characterized by limited application to those cases when, first of all, several lawful heirs who accepted the inheritance are involved into succession procedure and, secondly, there is no division of the inheritance in the last will and testament. The exercise of this right does not entail an increase in the inheritance share of the lawful heir who was a co-owner of the joint tenancy together with the ancestor, but only provides priority in acquiring the right of ownership to certain property within the succession procedure. An exception to the general rule on the succession of a share in the right to joint tenancy is the construction of the last will and testament of the spouses, which provides for a special mechanism for acquiring the right of ownership to the property by the second spouse, in respect of which such last will and testament is drawn up.
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