Marriage contract and obligatory share in inheritance: limits of spouses’ contractual autonomy in the context of European integration and martial law

Abstract

Purpose of the study is a comprehensive analysis of the conflict between the marriage contract and the rules on the obligatory share in inheritance and formulation of a clear legal mechanism for its resolution through the conceptualization of a two-element challenge formula, as well as identification of the specifics of applying this formula in the context of European integration and martial law. Methods of the research include the dogmatic method for analyzing Article 1241 of the Civil Code of Ukraine and Article 103 of the Family Code of Ukraine, the historical and legal method for revealing the evolution of the forced heirship institution in continental law, the comparative legal method for comparing the approaches of Poland, Germany, and France to the protection of obligatory heirs, the analysis of the case law of the Civil Cassation Court of the Supreme Court of Ukraine for 2020–2025, and the method of legal forecasting for formulating proposals for regulating the procedure for challenging a marriage contract by obligatory heirs. Results of the research consist in revealing the ontological nature of the obligatory share as a manifestation of the concept of forced heirship in continental law and its function of embodying the idea of the family as a solidary economic community; in identifying the mechanism of indirect testation through a marriage contract, in which the transfer of property to the ownership of the second spouse during the lifetime of the testator is functionally equivalent to circumventing the imperative norms of inheritance law; in formulating a proprietary two-element challenge formula for a marriage contract as one that circumvents the rules on the obligatory share – the first element (suspect intent test) provides for proving the subjective intent to circumvent the imperative norm, the second element (objective impairment test) provides for an objective reduction of the inheritance mass below the level of the guaranteed share; in generalizing case law and typical mistakes of notaries; in comparative comparison of Polish zachowek, French réserve héréditaire and German Pflichtteil; in revealing the specifics of the application of marriage contracts in inheritance under martial law conditions. Conclusions include substantiation of the need to supplement Article 1241 of the Civil Code of Ukraine with a rule on including in the calculation base of the obligatory share the property transferred by the marriage contract to the ownership of the surviving spouse during the last three years before the opening of the inheritance; harmonization of Article 103 of the Family Code with the mechanism of the two-element challenge formula; introduction of the doctrinal regime of «suspended transformation» for cases of persons missing in action under special circumstances.