The Inheritance-legal Status of the Spouse or How the Spouse Inherits, According to Serbian Law

In the first line of succession, the spouse inherits the decedent together with his descendants in equal shares, but this applies only in the case that those descendants of the decedent are joint descendants of the decedent and the spouse invited to the inheritance. If this is not the case, the spouse practically loses the status of heir of the first order because the extent of his right to inheritance is reduced, although he still remains in that order. Namely, when there is a decedent’s child to whom the decedent’s spouse is not a parent, and the property of the spouse is greater than that which would have accrued to him during the division of the inheritance into equal parts, then each of the decedent’s children can inherit up to twice as much as the spouse if the court, after considering all the circumstances, judge that it is justified.

The position of the spouse is less favorable if the decedent has no offspring and the spouse then definitely loses the status of first-line heir and inherits not in the first but in the second line of succession together with the testator’s parents and their offspring. Then the testator’s spouse inherits half of the inheritance, and the other half is inherited in equal parts by the testator’s parents, that is, if they cannot or will not inherit – their offspring. In practice, it is not difficult to imagine a situation where a spouse in this situation shares the inheritance with the testator’s cousin or nephew.

Only in the event that the decedent’s parents have no offspring and cannot or will not inherit, the spouse inherits the entire legacy.

It is important to point out that the spouse has one very specific right:

1. Increasing the inheritance share of a spouse in the second line of succession

When the testator’s spouse is invited to the inheritance with the heirs of the second line of succession, and does not have the necessary means of living, the spouse can, within one year from the testator’s death, demand lifelong enjoyment of all or part of the inheritance inherited by the other heirs, and if the value of the inheritance is so small that dividing it would result in poverty, the spouse can claim ownership of the entire inheritance. The spouse and the other heirs can always change the lifetime enjoyment into a lifetime annuity by agreement, and if the circumstances that caused the spouse to receive the lifetime enjoyment or the annuity change, the court can cancel the lifetime enjoyment or the annuity, if the other heirs request it.

Also, at this point it is important to mention the possibility of reducing the inheritance share of the spouse in the established line of succession.

2. Reduction of the inheritance share of the spouse in the second line of succession

When the spouse is invited to the inheritance with the heirs of the second line of succession, and the decedent’s inherited assets make up more than half of his separate property, the other heirs may, within one year of the decedent’s death, demand a reduction of the spouse’s inheritance to a quarter of the inheritance, if the community of life of the decedent and spouse did not last long.

The Law on Inheritance specifically regulates some other important issues related to the spouse. Namely, the Spouse loses the right to legal inheritance:

1) if the testator had filed a lawsuit for divorce and after his death it was established that the lawsuit was founded;

2) if his marriage with the testator was annulled after the testator’s death, for reasons known to the spouse at the time the marriage was concluded;

3) if his community of life with the testator was permanently terminated due to his fault or in an agreement with the testator.

Instead of a conclusion, a review

The division of property for life and the right of residence for life are the surest way to provide for parents in the event of the death of a spouse, because sometimes it happens that there is a dispute about the division of property.

According to the Inheritance Law (“Official Gazette of RS”, no. 46/95, 101/2003 and 6/2015), the property of the deceased is inherited by the spouse and children. Namely, this principle was not introduced by a new law, but has always been valid. However, the heirs inherit equal parts, so if the deceased had a wife and two children – each of them gets a third.

In practice, the problem of inheriting an apartment or house often arises when one spouse dies, because the remaining one has to share the property with the children. It happens more and more that the children insist on selling the “roof over their head” and dividing the money, so mother or father often cannot buy a new apartment from the obtained part.

A spouse can request in the probate procedure the allocation of half of the property if it was acquired during the marriage through joint work. The wife would thus receive four-sixths, and if the deceased had two children, they would each receive one-sixth. Spouses can divide marital assets during their lifetime. However, a part of the property that the deceased did not acquire through joint work in marriage, but through an inheritance or a gift, the surviving spouse cannot claim to be set aside in the name of marital assets.

Therefore, one of the ways that the heirs do not sell the surviving spouse “a roof over his head” is to divide the property during his lifetime.

Spouses can register the right of lifelong residence in real estate in favor of their spouse during their lifetime. Thus, if after the death of the testator, the procedure for physical division is initiated, the surviving spouse would have the right of residence for the rest of his life. Property can be left by will or gift to the other spouse, but in that case the children have the right to the necessary part.

Zoran J. Minic, Attorney at Law

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