What Is the Actual Disclaimer of Inheritance?
What is the Formal Renunciation of Inheritance?
In this article, I will address my valued readers regarding the subject of formal renunciation of inheritance, which causes legal transactions to have different outcomes both in personal relationships and in familial or kinship ties.
The issue of renunciation of inheritance is regulated in detail in Articles 605 and the following of the Turkish Civil Code. Renunciation of inheritance is a crucial legal avenue that allows an heir the possibility of not accepting the status of an heir. Renunciation of inheritance is regulated in the law in two ways. In practice and under the law, it arises from the will of the heir, as well as from the explicit provisions of the law. The case where it arises from the will of the heir is called the formal renunciation of inheritance. The case where the renunciation of inheritance arises from the law is called the automatic (by operation of law) renunciation of inheritance.
Formal Renunciation of Inheritance; the right to formal renunciation is regulated in Article 605 of the Turkish Civil Code.
1. Right of renunciation
Article 605 - Legal and appointed heirs may renounce the inheritance.
If the decedent's insolvency at the time of death is clearly evident or has been officially determined, the inheritance is deemed renounced.
The renunciation of an inheritance can only occur upon the devolution of the estate, that is, after the death of the decedent. If the decedent does not wish to acquire the status of heir during their lifetime, they may enter into a contract of waiver of inheritance.
For the renunciation of an inheritance, the heir must express their intention to renounce the inheritance. This declaration of intent is a formative declaration and is not subject to any formal requirements. The matter of renunciation of inheritance can be carried out by applying to the civil court of peace in the decedent's last place of residence and filing a lawsuit for renunciation of inheritance with a petition that includes the declaration of renunciation. The most important point in this case is that the declaration of the intent to renounce is clearly understood. In this lawsuit for renunciation of inheritance, the judge of the civil court of peace records the heir's declaration of renunciation in the court's special register.
The presence of formal deficiencies in a lawsuit for renunciation of inheritance does not render the renunciation invalid. If the heir's declaration of renunciation is made in accordance with Article 609 of the Turkish Civil Code, it takes effect from the moment it is made.
Heirs making a declaration of renunciation must possess legal capacity to act. Furthermore, since the declaration of renunciation of inheritance is not a right strictly personal to the individual, it can be performed through a representative. The most important point here is that the representative who will make the declaration of renunciation must be specifically authorized. The declaration of renunciation by an heir who lacks full capacity can be made by a legal representative with special authorization. However, if the heir lacking full capacity is under guardianship, it is required to be done upon the guardian's request to the civil court of peace and with the permission of the judge of the civil court of peace. In the case of those with limited capacity, the declaration of renunciation is made with the special authorization of the legal representative or with their express consent.
Article 609 of the Turkish Civil Code stipulates that the declaration of renunciation must be unconditional.
Form of renunciation
Article 609 - The renunciation of an inheritance is made by the heirs to the civil court of peace through an oral or written declaration.
The renunciation must be unconditional.
The judge of the peace records the oral or written declaration of renunciation in a transcript.
The declaration of renunciation, made within the time limit, is entered into the special register of the civil court of peace at the place where the inheritance was opened, and if the renouncing heir requests, a document showing the renunciation is given to them.
The procedures for maintaining the transcript and the register are regulated by a regulation issued by the President.
As clearly regulated in the article on the form of renunciation regarding the renunciation of inheritance, the renunciation must be made unconditionally. However, an exception to this article is regulated in Article 614 of the Turkish Civil Code.
Renunciation in favor of subsequent heirs
Article 614 - Heirs may request, before the liquidation, that the subsequent heirs be asked whether they accept the inheritance while renouncing it themselves.
In this case, the renunciation is notified to the subsequent heirs by the judge of the peace; if they do not accept the inheritance within one month, they are deemed to have renounced it.
Upon this, the estate is liquidated according to bankruptcy provisions, and the remaining values after liquidation are given to the preceding heirs.
The Turkish Civil Code has established this provision because the matter of renunciation of inheritance should be clearly understood. If the renunciation made by the heir is tied to a condition or reservation, the intent to renounce is deemed invalid. In this case, the heir who renounced the inheritance is considered to have acquired the status of heir. However, they retain the right to make a declaration of renunciation again within the legal period, in accordance with the rules explicitly set out in the law.
An heir does not have the right to partial renunciation. In practice and doctrine, a declaration of intent by an heir stating they accept certain movables from the estate but do not accept certain immovables is considered invalid.
Since the renunciation of inheritance is a formative declaration of intent, it takes effect from the date the lawsuit is filed in the civil court of peace and the decision is rendered, and it cannot be retracted.
However, since it is not possible to retract a formal declaration of renunciation in practice and under the law, it is accepted that a declaration of renunciation that is considered defective due to a flaw in intent may be canceled in accordance with the articles of the Turkish Civil Code. The cancellation of a declaration of renunciation of inheritance is also understood as an acceptance of the inheritance, and the right to renounce the inheritance ends. However, if the legal period for renunciation of inheritance has not expired, there is a right to make a new declaration of renunciation.
Time limit
a. In general
Article 606 - The inheritance may be renounced within three months.
This period begins to run from the date the legal heirs learn of the decedent's death, unless it is proven that they learned of their status as heirs at a later date; for heirs appointed by will, it begins from the date the decedent's disposition is officially notified to them.
In Article 606 of the Turkish Civil Code, the renunciation period is regulated as 3 months. Since the declaration of renunciation is a formative declaration, the 3-month period regulated by law is a preclusive time limit. In a lawsuit for renunciation of inheritance, the civil court of peace primarily examines whether the lawsuit was filed within the legal period. An heir who does not renounce the inheritance within the 3-month legal period is deemed to have accepted the inheritance.
ATTORNEY GİZEM GONCE