A Spouse May Be Disqualified from Intestate Succession by a Court Decision

A spouse may be disqualified from intestate succession by a court decision if it is proven that the marriage with the deceased had in fact ceased before the opening of the inheritance and that the spouses had lived separately for at least five years prior to the opening of the inheritance (Article 1070(2) of the Civil Code).

This provision is correctly applied by the courts. Where it is established that the spouses had lived separately for at least five years prior to the opening of the inheritance, had not maintained a joint household, and had not provided each other with financial support, the courts grant the claims.

By the judgment of the Pavlodar City Court dated 13 March 2024, the claim filed by D.K. (the mother) against D.O. (the spouse) was dismissed. The claim was based on the fact that D.Zh. died on 8 September 2023, that the inherited property consisted of an apartment, and that the spouses had lived separately since 2015 and had not maintained a joint household.

In dismissing the claim, the court substantiated its conclusions by finding that the claimant's arguments concerning the actual termination of the marriage were refuted by witness testimony confirming that the spouses D. had jointly rented out the said apartment. Furthermore, it was the defendant who paid the utility charges and taxes in respect of the disputed apartment in 2021–2022, which indicated the existence of family relations between the spouses D. during that period.

By the ruling of the Judicial Panel for Civil Cases of the Pavlodar Regional Court dated 12 June 2024, the judgment of the court of first instance was upheld without amendment.

General Provisions

In accordance with the requirements of paragraph 1 of the Regulatory Resolution, when resolving inheritance disputes, courts must be guided by the legislation in force on the date of the opening of the inheritance.

A new law introducing any amendments or additions to the previous procedure governing inheritance relations applies to those rights and obligations arising after its entry into force.

The previous review explained that, from 1 July 1999, that is, from the date the Civil Code of the Republic of Kazakhstan (Special Part) entered into force, the previously existing procedure for accepting an inheritance was changed.

In accordance with Article 542 of the Civil Code of the Kazakh SSR, which was in force prior to 1 July 1999, an heir was required to accept the inheritance in order to acquire it.

An heir was deemed to have accepted the inheritance if he or she had actually taken possession or control of the inherited property or had submitted an application for acceptance of the inheritance to the state notary office at the place where the inheritance was opened.

Such actions had to be performed within six months from the date of the opening of the inheritance.

With the entry into force of the Civil Code of the Republic of Kazakhstan (Special Part) on 1 July 1999, the rules governing the acceptance of inheritance changed substantially. A “presumption of acceptance of inheritance” came into effect, meaning that an heir acquired the right to the inheritance due to him or her from the time of the opening of the inheritance, provided that the heir did not subsequently renounce the inheritance, was not deprived of the right to inherit, and did not lose the right to inherit as a result of the invalidation of a testamentary disposition appointing him or her as an heir.

From 3 February 2007, the previous procedure for accepting an inheritance was reinstated pursuant to the Law dated 12 January 2007 “On Amendments and Additions to the Civil Code of the Republic of Kazakhstan (General and Special Parts).”

In certain cases, courts fail to take into account that, when considering a case, they must be guided by the legislation in force on the date of the opening of the inheritance.

By the judgment of the Mugalzhar District Court of the Aktobe Region dated 16 May 2024, the claim filed by G.V.V. against the State Institution “Office of the Akim of the City of Kandyagash, Mugalzhar District, Aktobe Region” seeking restoration of the time limit for accepting the inheritance and recognition of the claimant as having accepted the inheritance was granted. The case was not considered on appeal.

The circumstances of the case indicate that the deceased, G.V.N., died on 13 December 2000, that is, during the period when the presumption of acceptance of inheritance was in force. However, when the claimant applied to K., a notary of the Aktobe Notarial District, for a certificate of the right to inheritance, the claimant was refused on the grounds that the time limit for accepting the inheritance had expired.

Such errors are systematic in nature. Ignorance of the law by certain notaries results in citizens being unjustifiably compelled to apply to the courts, while the courts fail to prevent the unlawful actions of notaries, thereby contributing to the continued violation of citizens’ rights.

Courts should be aware that the circle of heirs is likewise determined in accordance with the legislation in force at the time of the opening of the inheritance. During the period when the Civil Code of the Kazakh SSR was in force, there were only three classes of heirs. From 1 July 1999, the Civil Code of the Republic of Kazakhstan established six classes of intestate heirs, and from 3 February 2007, the circle of heirs was changed again.

During the period from 1 July 1999 to 3 February 2007, the Civil Code did not contain the institution of hereditary transmission. From 3 February 2007, the rules governing inheritance by right of representation were amended.

Thus, given the different legal regulation of the same issue during different periods, courts must apply the rules of law that were in force at the time the inheritance was opened.

Jurisdiction

In accordance with the Civil Procedure Code, the following rules of jurisdiction apply to civil cases arising from inheritance legal relations.

Part 3 of Article 31 of the Civil Procedure Code establishes exclusive jurisdiction over cases involving claims for the recognition of an heir as unworthy, the recognition of an inheritance as escheat property, the restoration of the time limit for accepting an inheritance, and the extension of the time limit for renouncing an inheritance.

Cases concerning the above-mentioned claims shall be considered at the place where the inheritance is opened.

The previous review clarified issues concerning jurisdiction over cases involving claims for the restoration of the time limit for accepting an inheritance due to the inconsistency between paragraph 12 of the Regulatory Resolution and Part 3 of Article 31 of the Civil Procedure Code. Until the relevant amendments are introduced into the Regulatory Resolution, courts are recommended to be guided by the provisions of the Civil Procedure Code. Accordingly, claims for the restoration of the time limit for accepting an inheritance or for the extension of the time limit for renouncing an inheritance must be filed with the court at the place where the inheritance is opened.

According to Article 1043 of the Civil Code, the place where the inheritance is opened is the last place of residence of the deceased, and if it is unknown, the location of the property or its principal part.

By the ruling of the Aksu District Court of the Zhetysu Region dated 23 October 2024, the claim filed by A.T. against O. and others for the restoration of the time limit for accepting an inheritance was unjustifiably returned on the grounds that the case was outside the jurisdiction of that court. As the basis for returning the claim, the court indicated that the deceased A.M. had been registered in the city of Taldykorgan.

By the ruling of the Judicial Panel for Civil Cases of the Zhetysu Regional Court dated 10 December 2024, the ruling of the court of first instance was set aside, and the claim was referred to the same court.

According to information from the Information Exchange System of Law Enforcement and Special Bodies, the deceased A.M. had been registered during his lifetime in the village of Zhansugurov, Aksu District. Similar information concerning the deceased's last place of residence was provided by the police authorities. In addition, a residential building at the above-mentioned address was registered in the ownership of A.M.

Part 2 of Article 31 of the Civil Procedure Code establishes exclusive jurisdiction over claims brought by creditors of the deceased against heirs and the executor of the will (trust manager of the inheritance), at the location of the inherited property, in accordance with the rules established by Part 1 of this Article, that is, in accordance with the rules established for immovable property.

If the inherited property includes movable property, such as bank deposits, an interest in the authorised capital of a business partnership, shares in cooperatives, and so forth, the general rule of jurisdiction applies to creditors' claims, namely jurisdiction at the defendant's place of residence or location.

Disputes concerning the protection of the inheritance rights of minor children shall, pursuant to Part 3 of Article 27 of the Civil Procedure Code, be considered by specialised inter-district courts for minors.

In certain cases, courts unjustifiably transfer cases to specialised courts for minors on the grounds of jurisdiction.

By the ruling of the Kyzylorda City Court dated 2 October 2024, the claim filed by I. against A. seeking recognition of the application for renunciation of inheritance as unlawful and invalidation of the certificate of the right to inheritance was transferred, on grounds of jurisdiction, to the Specialised Inter-District Court for Minors of the Kyzylorda Region, on the basis that the defendant had arrears in child support payments to the claimant for the maintenance of minor children.

The appellate panel disagreed with the conclusion of the court of first instance, set aside the ruling, and referred the case back to the same court for consideration on the merits, noting that the claim had not been filed in the interests of minors, who were not heirs of the deceased.

The general rule of territorial jurisdiction, namely jurisdiction at the defendant's place of residence or location, applies to all other cases arising from inheritance rights, including cases concerning the invalidation of a will or a certificate of the right to inheritance, except for certificates relating to rights in immovable property, and so forth.

By the ruling of the Judicial Panel for Civil Cases of the North Kazakhstan Regional Court dated 13 February 2025, the ruling of the Gabit Musrepov District Court dated 16 January 2025, by which the claim filed by an LLP against S. and F. for the invalidation of a certificate of the right to inheritance by law was returned, was set aside.

In returning the claim, the court of first instance proceeded on the basis that the claimant was a legal entity, the defendant S. was registered as an individual entrepreneur (hereinafter referred to as an “IE”), and the dispute concerned the share of participants in common shared ownership in a peasant farm (hereinafter referred to as a “PF”), which indicated the existence of a corporate dispute falling within the jurisdiction of the Specialised Inter-District Economic Court (hereinafter referred to as the “SIDEC”).

The Judicial Panel found these conclusions unfounded, noting that the defendant S. was neither a participant in the LLP or the PF nor the head or former head of those organisations. Accordingly, the court's conclusion that the dispute was corporate in nature contradicted the provisions of Article 27 of the Civil Procedure Code. S.'s status as an IE was irrelevant to determining whether the case fell within the jurisdiction of the SIDEC, as the LLP's application was connected with challenging a title document of the defendant as an individual.

According to Article 307 of the Civil Procedure Code, an application in cases concerning the establishment of a fact having legal significance shall be filed with the court at the applicant's place of residence, except for cases concerning the establishment of the fact of the existence of documents confirming ownership, use and/or disposal of immovable property, which shall be filed with the court at the location of the immovable property.

By the judgment of the Taraz City Court of the Zhambyl Region dated 6 December 2024, the application filed by L.T. for the establishment of the legally significant fact of the place where the inheritance was opened was granted. The city of Taraz was determined to be the place where the inheritance was opened following the death of L.S., who died on 24 October 1999.

The basis for applying to the court was the ruling of Notary S. dated 11 October 2024, by which the applicant was refused the issuance of a certificate of the right to inheritance following the death of her spouse and was advised to apply to the court to determine the place where the inheritance was opened, since the spouse had not been registered at the location of the inherited property, namely an apartment in the city of Taraz, and had been deregistered from his previous place of registration.

In this case, the notary unjustifiably refused to issue the certificate of the right to inheritance, since, in accordance with Article 1043 of the Civil Code, the place where the inheritance is opened is the deceased's last place of residence, and if it is unknown, the location of the property or its principal part. Accordingly, the court had no legal grounds for granting the application.

A., residing in the city of Almaty, applied to the court with an application for the establishment of two facts: the existence of a family relationship with her grandmother U., and the fact of acceptance of an inheritance opened following U.'s death in the territory of the city of Khromtau, Aktobe Region.

By the ruling of the Khromtau District Court dated 2 August 2024, A.'s application was returned for lack of jurisdiction, with reference to Article 307 of the Civil Procedure Code.

The appellate court, referring to the provisions of Article 31 of the Civil Procedure Code, set aside the ruling of the court of first instance, noting the existence of immovable property belonging to the deceased.

Subsequently, by the ruling of the Khromtau District Court dated 23 October 2024, the proceedings in the part concerning the request for the establishment of the fact of acceptance of the inheritance were left without consideration due to the withdrawal of the application, pursuant to subparagraph 8) of Article 279 of the Civil Procedure Code.

By the judgment of the court dated 28 October 2024, A.'s application for the establishment of the fact of a family relationship was granted.

The analysis conducted by the Aktobe Regional Court raised the question of whether the consideration of the above case in the Aktobe Region was lawful from the perspective of territorial jurisdiction, since, in accordance with Article 307 of the Civil Procedure Code, an application in cases concerning the establishment of a fact having legal significance shall be filed with the court at the applicant's place of residence. The exception consists of applications concerning the establishment of the fact of the existence of documents confirming ownership, use and/or disposal of immovable property, which shall be filed with the court at the location of the immovable property.

In this case, the position of the appellate court appears to be correct, since the initial application required the application of the rule of exclusive jurisdiction established by Article 31 of the Civil Procedure Code, namely the establishment of the fact of acceptance of an inheritance consisting of immovable property.

Regulatory Legal Framework

The regulatory legal acts governing these legal relations and subject to application when considering cases in the category under review are as follows:

• Constitution of the Republic of Kazakhstan;
• Chisinau Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters dated 7 October 2002;
• Minsk Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters dated 22 January 1993 and the Protocol thereto dated 28 March 1997;
• Civil Code of the Kazakh SSR (hereinafter – the Civil Code of the Kazakh SSR);
• Civil Code of the Republic of Kazakhstan (hereinafter – the Civil Code of the Republic of Kazakhstan, the Civil Code);
• Civil Procedure Code of the Republic of Kazakhstan (hereinafter – the Civil Procedure Code);
• Code of the Republic of Kazakhstan “On Marriage (Matrimony) and Family”;
• Law of the Republic of Kazakhstan “On Notariat”;
• Regulatory Resolution No. 5 of the Supreme Court of the Republic of Kazakhstan (hereinafter – the Supreme Court of the Republic of Kazakhstan) dated 29 June 1999 “On Certain Issues of the Application by Courts of Legislation on Inheritance” (hereinafter – the Regulatory Resolution);
• Regulatory Resolution No. 13 of the Supreme Court of the Republic of Kazakhstan dated 28 June 2022 “On Judicial Practice in Cases Concerning the Establishment of Facts Having Legal Significance”;
• Rules for the Performance of Notarial Acts by Notaries, approved by Order No. 31 of the Minister of Justice of the Republic of Kazakhstan dated 31 January 2012.

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