WHAT IS INHERITANCE?
WHAT IS AN INHERITANCE?
It is the assets, money, etc., that pass to the heirs of a person upon their death. However, an inheritance consists not only of assets but also of the deceased person’s debts, which are transferred to the heirs. In other words, we must consider the inheritance as a whole. It is fundamentally possible to refer to the inheritance as the "estate" (tereke).
WHO ARE THE LEGAL HEIRS?
The solution provided by our legal system regarding who will receive the deceased's assets is the parentelic system. According to this system;
If the deceased's descendants—that is, children, grandchildren, etc.—are alive, the inheritance remains with them. The deceased's ascendants do not receive an inheritance share.
If there are no surviving descendants, the inheritance passes to the second parentela, which is the ascendants. Accordingly, the deceased's parents, and if they are not alive, the deceased's siblings and nieces/nephews, become entitled to the inheritance.
If no one from the second parentela is alive, the inheritance passes to the third parentela. That is, it remains for the deceased's grandparents, and if they are not alive, for the deceased's uncles, aunts, and great-uncles/aunts.
If none of the deceased's relatives are alive, the inheritance passes to the State.
HOW IS THE SPOUSE'S RIGHT OF INHERITANCE DETERMINED?
The spouse of the deceased is not included within the parentelic system explained above. For this reason, the spouse's inheritance right is regulated separately by law. According to the legal regulation, the deceased's spouse will have a right to the inheritance at rates determined by law, depending on which parentela they are inheriting alongside.
DOES A SPOUSE WITHOUT A CIVIL MARRIAGE HAVE AN INHERITANCE RIGHT?
The most important condition for a spouse to obtain inheritance rights is that a marriage must have been established with the deceased via an official civil marriage bond in the sense of the Turkish Civil Code. A person without a civil marriage cannot, in this respect, inherit. A person who does not leave an inheritance to their non-legally married spouse may include them in the inheritance as an appointed heir through testamentary dispositions.
HOW MUCH IS THE INHERITANCE SHARE AND HOW IS IT DETERMINED?
Inheritance sharing ratios are determined by the provisions in Article 495 and following articles of the Turkish Civil Code (TMK). Accordingly;
If the testator's descendants are alive, the surviving spouse receives 1/4 of the inheritance. The remainder is divided equally among the children. If a child is deceased, their share passes to their own children—the testator's grandchildren. If the deceased's child has no children, the distribution is made among the other heirs without considering that heir at all.
If there are no descendants, the deceased's spouse receives 1/2 of the inheritance. The other 1/2 is distributed to the deceased's parents. If one of the parents is not alive, the surviving parent receives half of that 1/2 share. The remaining 1/2 is distributed to the deceased's siblings. If neither parent is alive, 1/2 of the estate is distributed to the deceased's siblings.
If no one from these individuals is alive, the inheritance share is distributed to the 3rd parentela, i.e., the grandparents. Here, the spouse receives 3/4 of the estate. The remaining 1/4 is distributed equally among the uncles and aunts in line with the logic explained above.
If no one from any parentela is alive, the spouse receives the entire inheritance.
WHAT IS A CERTIFICATE OF INHERITANCE AND HOW IS IT OBTAINED?
The document showing who the heirs are and what their respective shares are in the inheritance left by a decedent is called a certificate of inheritance (veraset ilamı). A certificate of inheritance can be obtained by any heir by applying to a Civil Court of Peace or a Notary Public.
ARE HEIRS LIABLE FOR THE DEBTS OF THE DECEDENT?
As a rule, heirs are unlimitedly liable for the debts of the deceased with their personal assets. This liability begins with the death of the testator; even after the distribution of the estate, the heirs remain jointly and severally liable with all their assets.
HOW IS THE INHERITANCE DISTRIBUTED?
Inheritance sharing ratios vary based on the presence of the deceased's surviving spouse, according to the rates specified in the law among legal heirs. Other heirs receive equal shares. To explain with an example: if a surviving spouse and 3 children are the legal heirs, the surviving spouse is entitled to 1/4 of the inheritance, and each child is entitled to 1/4 of the inheritance. In another example, if a surviving spouse and 2 children are legal heirs, the surviving spouse is entitled to 1/4 of the inheritance, and each child is entitled to 3/8 of the inheritance. If the spouse is deceased, the entire inheritance is distributed among the children.
WHAT SHOULD BE DONE IN CASE OF A DISPUTE REGARDING INHERITANCE SHARING?
Upon the death of the testator, the inherited property passes to the heirs. The inheritance shares of the heirs are determined by law. In some situations, disagreements arise among the heirs. Following the death of the decedent, a lawsuit must be filed if a dispute arises between the heirs regarding the division of the inheritance. This lawsuit can be filed by any of the heirs or by all the heirs together.
DOES A CHILD BORN OUT OF WEDLOCK HAVE AN INHERITANCE RIGHT?
There is no difference regarding inheritance shares between a child born out of wedlock and a child born within wedlock. A child born out of wedlock will benefit from the inheritance within the framework of the provisions explained above.
DOES AN ADOPTED CHILD HAVE AN INHERITANCE RIGHT?
If the deceased has adopted someone, this adopted person becomes an heir. However, this heirship is different from others and is unilateral. While the adopter cannot be an heir to the adopted person, the adopted person becomes an heir to the adopter. At the same time, the adopted child can only be an heir if the deceased themselves performed the adoption. For example, if the adopter's father has died and the adopter is also not alive, the adopted child cannot inherit as if they were a grandchild.
DOES AN UNBORN CHILD IN THE WOMB HAVE AN INHERITANCE RIGHT?
In our law, a fetus in the womb is called a "cenin." For a fetus to have rights and be an heir, it must be born alive. If the spouse is pregnant when the testator dies, the fetus becomes entitled to a share in the estate like its other siblings, even though it has not yet been born. In this case, the birth of the baby must be awaited for the distribution of the inheritance. If the baby is not born alive, the inheritance distribution will be carried out as if it never existed.
DOES THE RIGHT TO INHERIT CONTINUE IN THE EVENT OF DIVORCE?
Divorced spouses can no longer inherit from each other upon death once the divorce decree becomes final. However, through testamentary dispositions, such as a will, it can be provided that the divorced spouse is entitled to a portion of the inheritance.
IF THE REMAINING INHERITANCE CONSISTS MAINLY OF DEBTS, WHAT PATH CAN BE TAKEN? (DISCLAIMER OF INHERITANCE)
In this case, heirs can apply for the "disclaimer of inheritance" (reddi miras) regulated by the Civil Code. An heir who does not want to accept the inheritance must exercise their right to disclaim it within a 3-month period; this is a preclusive period. This period begins for legal heirs from the date they learned of the death of the testator, unless it is proven that they learned of their status as heirs later; for heirs appointed by will, it begins from the date the testator's disposition was officially notified to them. The disclaimer of inheritance can be made to the Civil Court of Peace with an unconditional oral or written statement. If the estate is insolvent, the inheritance is considered disclaimed by operation of law. If the testator's insolvency was clearly apparent or officially determined at the time of their death, the inheritance is considered disclaimed.
CAN ONE HEIR DISPOSE OF THE INHERITANCE WITHOUT THE CONSENT OF THE OTHER HEIRS?
It is not possible for one of the heirs to perform any transaction regarding the inheritance without the consent of the others, unless otherwise stated in the law. As clearly regulated in the law, joint ownership (elbirliği mülkiyeti) is formed over the assets left from the testator to the heirs. In joint ownership, the partners do not have defined shares, and each person's right extends to the entirety of the assets included in the partnership. The owners of joint ownership are equally and jointly owners of the entirety of an asset in every respect. Unless there is a contrary provision in the law or contract, decisions must be made by unanimous consent of the partners for both management and disposition transactions. In other words, a common decision of all owners is required for the management of this property.
WHAT IS THE PROTECTED PORTION (RESERVED SHARE) OF THE HEIRS?
The protected portion of the heirs refers to the part of the inheritance over which the testator cannot dispose when making a will to make testamentary dispositions. Protected portions apply to legal heirs. The inheritance right of an heir with a protected portion cannot be eliminated in any way. According to Article 506 of the Civil Code, the protected portions of legal heirs are as follows:
For descendants: 1/2 of their legal inheritance share.
For each parent: 1/4 of their legal inheritance share.
The protected portion of the surviving spouse is their entire legal inheritance share if they are an heir along with the descendants or the parents' parentela; in other cases, the protected portion is 3/4 of their legal inheritance share.
WHAT IS A REDUCTION ACTION (TENKIS DAVASI)?
A reduction action is a type of lawsuit filed by heirs whose protected portion has been infringed upon, for the purpose of having their protected portion restored. Through a reduction action, one may challenge donations made by the deceased via an inheritance contract or a will, and in cases enumerated in the law, the return of certain donations made before death may also be requested. A reduction action is a lawsuit that can only be filed upon the death of the testator; this lawsuit cannot be filed while the testator is still alive.
WHAT IS COLLATERALIZATION (DENKLEŞTİRME) IN INHERITANCE?
Collateralization in inheritance is the return to the estate of certain gratuitous assets given by the testator to some of their legal heirs during their lifetime, to the detriment of others. In this case, the assets in question will be taken into account in the distribution of the estate as if they had never left the inheritance before, and the inheritance will be distributed accordingly. Heirs whose interests have been harmed can file this lawsuit against the heirs who benefited from the aforementioned assets.
WHAT ARE THE DIFFERENCES BETWEEN COLLATERALIZATION AND REDUCTION?
While the asset subject to collateralization is returned in its entirety to the estate, the asset subject to reduction is reduced only to the extent that it exceeds the disposable portion.
Assets subject to collateralization are only those given by the testator during their lifetime. Assets subject to reduction are, as a rule, dispositions effective upon death, though exceptionally in some cases, inter vivos gifts can be subject to reduction.
Collateralization in inheritance is an institution of inheritance law that can be invoked at the stage of distributing the estate. Reduction, however, is a right that every heir with a protected portion can assert within preclusive periods, either before or after distribution.
WHAT IS A PARTITION SUIT (İZALE-İ ŞUYU)?
With this lawsuit, it is intended to end the shared ownership among partners in movable or immovable property subject to shared or joint ownership and to transition to individual ownership. A partition suit is a multi-party lawsuit that produces similar results for all parties involved. It is possible for any heir to file and continue this lawsuit.
Partition (İzale-i Şuyu) can be carried out in two ways:
Partition by Division (Aynen Taksim): This is the physical division of the movable or immovable property. For example, ending the shared ownership by dividing a plot of land that can be divided into equal parts according to the number of heirs.
Partition by Sale: This is the sale of the movable or immovable property through enforcement proceedings and the distribution of the proceeds among the shareholders.
The competent court in a partition suit is the court where the immovable property is located. The specialized court is the Civil Court of Peace.
WHAT IS A WAIVER OF INHERITANCE, HOW IS IT DONE, AND DOES IT COVER DESCENDANTS?
A waiver of inheritance agreement is a contract regulated by Article 528 of the Turkish Civil Code, in which an heir declares that they renounce their expected right due to their future right of inheritance. The heir waives the right of inheritance that would otherwise pass to them from the testator in the future. For a valid waiver of inheritance agreement, it must be made in writing and officially between the heir and the testator. It cannot be made orally. The waiver agreement can be made for consideration or gratuitously. In a waiver for consideration, the heir obtains a right from the testator in exchange for this waiver. This contract cannot be made by a proxy; the person must personally accept and sign this contract in the presence of a notary public. Unless there is a contrary provision in the contract, a waiver for consideration covers the descendants; however, in gratuitous waiver of inheritance agreements, the waiver will not cover the descendants.
WHAT IS DISINHERITANCE (MİRASTAN ÇIKARMA)? HOW IS IT DONE?
It is possible for a testator to deprive an heir with a protected portion of their inheritance through a testamentary disposition. This path is known as disinheritance or exclusion (ıskat). Disinheritance only has an effect for heirs who have a protected portion. There is no need to exclude an heir who does not have a protected portion from the inheritance. This is because the testator can dispose of the inheritance share of heirs who do not have a protected portion as they wish, donate their share to someone else, or designate another person as their heir. The conditions for disinheritance specified in the Turkish Civil Code are as follows:
The heir committing a serious crime against the testator or their relatives.
The heir failing to significantly fulfill their duties arising from family law toward the testator or members of their family.