Establishing the fact of being a dependent
This publication is a short overview guide (module) to court cases on establishing a legal fact - being a dependent, in which legal positions have been developed on issues that have not been resolved by the highest courts. Regulatory acts.
Civil Procedure Code of the Russian Federation, Civil Code of the Russian Federation, Housing Code of the Russian Federation, Investigative Committee of the Russian Federation, Tax Code of the Russian Federation. Law of the Russian Federation “On the right of citizens of the Russian Federation to freedom of movement, choice of place of stay and residence within the Russian Federation”, Federal Law “On labor pensions in the Russian Federation”
A dependent is a disabled person, most often with a disability group. Temporarily unemployed able-bodied people are not dependents.
Art. 264 of the Civil Procedure Code of the Russian Federation directly provides for one of the types of legal facts - the fact of being a dependent, on which the emergence, change, termination of personal or property rights of citizens depends.
The mere fact of being a dependent is not subject to any registration , which creates the need for its special establishment. In most cases, cases of establishing the facts of being dependent are within the jurisdiction of the district (city) court. Despite the fact that being a dependent can be confirmed by social security authorities or the district administration at the applicant’s place of residence, often the relevant authorities do not have sufficient information, which entails the need to go to court.
Art. 267 of the Code of Civil Procedure of the Russian Federation provides, as a mandatory condition for applying to the court with an application to establish a legal fact in a special proceeding, the need to indicate the specific purpose for which the applicant needs to establish the required fact. It should be noted that in relation to cases of establishing the fact of being a dependent, this rule becomes especially important. This is explained by the fact that the concept of dependency as a fact of legal significance in each branch of the legislation of the Russian Federation has its own fundamental features. Accordingly, it is the purpose of establishing this fact that largely determines the subject of proof and the range of necessary evidence , and also affects the circle of interested parties involved in the case.
Establishing the fact of being a dependent may meet one of three purposes. This may be necessary for:
1. receiving an inheritance, 2. for assigning a pension in connection with the death of the breadwinner, 3. for compensation for damage in connection with the death of the breadwinner.
Let us dwell on the criteria for determining the fact of being a dependent in each of these situations.
Establishing the fact of being a dependent in order to obtain the right to inheritance.
The dependency criteria that determine this legal fact in relation to inheritance legal relations are enshrined in current civil legislation.
Within the framework of the current Civil Code of the Russian Federation, the fact of being a dependent may be the basis for the following types of inheritance legal relations: 1. The fact that citizens who are classified as heirs by law are dependent on the testator entails that they are called to inherit on an equal basis with the heirs of the line that is called to inherit, regardless on whether they belong to the heirs of this line. According to the rules of Part 1 of Art. 1148 of the Civil Code of the Russian Federation, when establishing the fact of being a dependent in relation to citizens included in the circle of heirs by law, the following circumstances will be included in the subject of proof: a) the dependent must be disabled by the day of the death of the testator; b) the dependent must be dependent on the testator for at least a year before the day of his death. Family relations and the fact of living together are not important in this case. It is important that the financial assistance of the testator be the only or main source of livelihood for the heir. It is also necessary that the assistance provided is not episodic, but regular. 2. The fact that the testator is dependent on citizens who are not included in the circle of heirs by law also entails that they are called to inherit on an equal basis with the heirs of the line that is called to inherit. However, the law adds an additional criterion to determine dependency . In addition to the two above criteria, the court must establish the fact of joint residence of the testator and dependent (Part 2 of Article 1148 of the Civil Code of the Russian Federation). Thus, when establishing the fact that a citizen who is not an heir by law is dependent on the testator, the following circumstances will be included in the subject of proof in the case: a) the fact of the applicant’s incapacity for work by the day the inheritance was opened; b) the fact that the applicant was a dependent of the testator for at least a year before the day of his death; c) the fact that the applicant lives together with the testator.
3. In addition, according to Art. 1149 of the Civil Code of the Russian Federation, the disabled dependents of the testator inherit, regardless of the contents of the will , at least half of the share that would be due to each of them if inherited by law (mandatory share). In this case, the criteria for establishing the fact of dependency are determined respectively by Parts 1 and 2 of Art. 1148 of the Civil Code of the Russian Federation, depending on whether the dependent is included in the circle of heirs by law.
The legislation does not give an unambiguous answer to the question of the period of being a dependent, without stipulating whether a mandatory condition for dependent is being supported by the testator during the year immediately preceding his death, or whether this period can take place a certain time before his death. Practices vary greatly across regions. Also raising questions is the possibility of being dependent not for a year in a row , but if this period was calculated in parts, for example, twice for six months. I believe that since the current legislation does not contain direct restrictions on this matter, these details should not affect the decision on the issue of whether a person is dependent on the deceased.
Establishing the fact of being dependent in order to receive a labor pension in the event of the loss of a breadwinner.
This category of cases is less conflicting.
When establishing the fact of being a dependent in order to assign a pension, it is necessary to take into account that the right to a pension in connection with the death of the breadwinner has the disabled members of the family of the deceased who were dependent on him. That is, the period of being a dependent (as opposed to inheritance legal relations) and the fact of cohabitation in this case have no legal significance. The criterion for determining dependency is disability. In addition, the dependent must be a family member of the deceased. A number of questions arise when defining the term “family member” in relation to these legal relations. If, in accordance with Art. 2 of the RF IC, spouses, parents and children , then the current housing legislation (Article 69 of the RF Housing Code) allows for the possibility of recognizing other relatives and disabled dependents as family members if they live together with the tenant and run a common household with him . Moreover, in exceptional cases, other relatives may be recognized as family members in court. I think that in order to establish the fact of being a dependent for the purpose of assigning a pension, a broad understanding of the term “family member”, resulting from the norms of the Housing Code of the Russian Federation, is more acceptable. Its narrow interpretation, based on family law, will entail an inevitable infringement of the rights of citizens who were dependent on the deceased, but were not his spouse, child or parent.
is also of fundamental importance . So, paragraph 3 of Art. 9 of the Federal Law “On Labor Pensions in the Russian Federation” directly establishes that family members of the deceased are recognized as his dependents if they were fully supported by him or received assistance from him, which was a constant and main source of livelihood for them. The exception is minor children, whose dependency is presumed and does not require special evidence. It should be noted that the fact that an alleged dependent has independent income does not in itself exclude the establishment of the fact of being a dependent. In this case, the court needs to establish what source of livelihood was permanent and main for the applicant.
Establishing the fact of being a dependent for the purpose of compensation for harm.
, only the fact of dependent is important , regardless of the presence of family relations between the dependent and the breadwinner, as well as the period of being dependent
. The circle of interested persons involved in participation in the case, as already noted, also depends on the purpose of establishing a legal fact. When receiving an inheritance, the heirs of the deceased must be involved as interested parties, and in their absence, the state represented by local divisions of the Federal Tax Service. When applying for a pension, interested parties include those entitled to receive a survivor's pension, as well as social security authorities.
Most often, court decisions on the collection of alimony, receipts of money transfers, private correspondence, witness statements, documents on loan repayment, etc. are examined as evidence of the fact of being a dependent at a court hearing.
If during the consideration of the case a dispute about the right arises (and this happens in 70% of cases), the application to establish the fact of being a dependent should be left without consideration.
At the same time, the judge explains to the applicant the possibility of filing a claim in court for recognition of the right to inheritance, or for recognition of the right to receive a pension in connection with the death of the breadwinner.
Legal consultation: Recognition of the fact that a person is a dependent
Question:
Hello! How to recognize the fact that the father or mother of a serviceman is dependent on him?
Natalya, 36 years old, Golitsyno
Answer:
Natalya, hello! In accordance with Art. 9 of the Federal Law of December 17, 2001 No. 173-FZ “On Labor Pensions in the Russian Federation”, disabled family members include:
one of the parents or spouse or grandfather, grandmother of the employee, regardless of age and ability to work, as well as a brother, sister or child who has reached the age of 18, if they are caring for children, brothers, sisters or grandchildren under 14 years of age and do not work ;
parents and spouse, if they have reached 60 or 55 years of age (men and women, respectively) or are disabled.
According to clause 5 of the “Manual on the registration of personnel of the Armed Forces of the Russian Federation” approved by the Order of the Minister of Defense of the Russian Federation of December 19, 2005 (hereinafter referred to as the Manual), dependents include persons who are fully supported or receive assistance that is permanent for them and the main source of livelihood in accordance with the legislation of the Russian Federation.
To resolve the issue of registering a dependent of a member of his family, a serviceman must submit a report on command, attaching documents confirming the dependent’s incapacity for work and that the main source of livelihood is financial assistance to the serviceman (certificates of the amount of pension received, the presence of children, the nature and size of provided material assistance, etc.).
To make a decision, the commander (chief) may additionally request information on this issue from the social protection authority or military commissariat. If there are insufficient grounds for making an independent decision to recognize being a dependent, the commander recognizes this fact on the basis of a court decision.
Recording of information about dependents in a personal file is carried out on the basis of an order for the combat unit, which is issued by decision of the commander of the military unit. The order specifies that, on the basis of the documents provided, the fact of being a dependent is established, that the necessary changes are made to column 21 of the service record of the serviceman, and that supporting documents are included in the “Additional Materials” section of the personal file.
Natalya, recent practice shows that recognition of the fact that a person is a dependent of a military serviceman is carried out only in court.
Alexander Tomenko, military lawyer
Ask your question
