What Is the Actual Disclaimer of Inheritance?
What Is the Actual Renunciation of an Inheritance?
In this article, I will discuss the subject of the actual renunciation of an inheritance, which leads to different legal consequences in both personal relationships and family and kinship relations, for you, my esteemed readers.
The matter of the renunciation of an inheritance is regulated in detail in Article 605 and the following articles of the Turkish Civil Code. The renunciation of an inheritance is a very important legal avenue that grants the heir the possibility of not accepting the status of heir. The renunciation of an inheritance is regulated in the law in two ways. The renunciation of an inheritance stems from the will of the heir in practice and in law, as well as from explicit legal regulations. The situation where it stems from the will of the heir is called the actual renunciation of an inheritance. The situation where the renunciation of an inheritance stems from the law is called the automatic (legal) renunciation of an inheritance.
Actual Renunciation of an Inheritance; The right of actual renunciation is regulated in Article 605 of the Turkish Civil Code.
1. Right of renunciation
Article 605 - Statutory and appointed heirs may renounce the inheritance.
If the insolvency of the deceased is clearly evident or officially established at the time of their death, the inheritance is deemed to have been renounced.
The renunciation of an inheritance can only take place upon the transfer of the inheritance, that is, after the death of the deceased. If the deceased does not wish to acquire the status of heir during their lifetime, they may enter into an inheritance waiver agreement.
For the renunciation of an inheritance, a declaration of intent by the heir regarding the renunciation of the inheritance is required. The declaration of intent is a formative statement and is not subject to any formal requirements. The matter of the renunciation of an inheritance can be carried out by applying to the civil court of peace at the last place of residence of the deceased and filing a lawsuit for the renunciation of the inheritance with a petition containing the declaration of renunciation. The most important point in this lawsuit is that the declaration of intent to renounce is clearly understood. In this lawsuit for the renunciation of the inheritance, the judge of the civil court of peace records the heir's declaration of renunciation and registers it in the special registry at the court.
Formal deficiencies in the lawsuit for the renunciation of the inheritance do not invalidate the renunciation. If the heir's declaration of renunciation is made in accordance with Article 609 of the Turkish Civil Code, it produces legal effects from the moment it is made.
Heirs who make a declaration of renunciation of an inheritance must have the capacity to act. Furthermore, since the declaration of renunciation of an inheritance is not a right strictly personal to the individual, it can be made through a representative. The most important point here is that the representative who will make the declaration of renunciation must be specially authorized. The declaration of renunciation of an incapacitated heir can be made by a legal representative with special authorization. However, if the fully incapacitated heir is under guardianship, it is required that the request be made by the guardian 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 of an inheritance is made with the special authorization or express consent of the legal representative.
Article 609 of the Turkish Civil Code stipulates that the declaration of renunciation must be unconditional.
Form of renunciation
Article 609 - The renunciation of the inheritance is made by the heirs to the court of peace through a verbal or written declaration.
The renunciation must be unconditional.
The judge of the peace records the verbal or written declaration of renunciation in minutes.
The declaration of renunciation, made within the time limit, is entered into the special register of the court of peace where the inheritance opened, and if the heir who renounced wishes, a document showing the renunciation is given to them.
The manner in which the minutes and the register will be kept is regulated by a regulation issued by the President.
As clearly regulated in the article on the form of renunciation regarding the renunciation of an 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 - When renouncing the inheritance, heirs may request that it be asked of the heirs who come after them whether they will accept the inheritance before liquidation.
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 inheritance is liquidated according to bankruptcy provisions, and the values remaining at the end of the liquidation are given to the preceding heirs.
The Turkish Civil Code has regulated this provision so that the matter of the renunciation of an inheritance can be clearly understood. If the renunciation made by the heir is tied to a record or a condition, the intent to renounce is considered invalid. In this case, the heir who renounced the inheritance is deemed to have acquired the status of heir. However, the right to make a declaration of renunciation again within the legal period by complying with the rules clearly regulated in the law is reserved.
The heir does not have the right to partial renunciation. In practice and doctrine, the declaration of intent by the heir that they accept some of the movable property and do not accept some of the immovable property is considered invalid.
Since the renunciation of an inheritance is a formative declaration of intent, it produces legal effects from the date the lawsuit is filed with the civil court of peace and the decision is rendered, and it cannot be withdrawn.
However, since it is not possible to withdraw an actual renunciation declaration in practice and law, it is accepted that a renunciation declaration considered flawed due to a defect in intent can be canceled in accordance with the articles of the Turkish Civil Code. The cancellation of the declaration of renunciation of an inheritance is also understood as accepting the inheritance, and thus the right to renounce the inheritance ends. However, if the legal period for the renunciation of the inheritance has not expired, there is the 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 for statutory heirs from the date they learn of the death of the deceased, unless it is proven that they learned that they were heirs at a later date; for heirs appointed by a will, it begins from the date the disposition of the deceased is officially notified to them.
In Article 606 of the Turkish Civil Code, the period for renunciation is set at 3 months. Since the declaration of renunciation is a formative declaration, the 3-month period regulated in the law is a preclusive time limit. In the lawsuit for the renunciation of the inheritance, the civil court of peace first examines whether the lawsuit was filed within the legal time limit. An heir who does not renounce the inheritance within the 3-month legal period is deemed to have accepted the inheritance.