What is an Inheritance Waiver Agreement?
In this article, I will talk to my esteemed readers about inheritance waiver agreements and their legal consequences.
The conditions and consequences of an inheritance waiver agreement are regulated in Article 528 of the Turkish Civil Code. Specifically:
Inheritance waiver agreement, Article 528; A testator may enter into an inheritance waiver agreement with an heir, either gratuitously or in return for consideration. The person waiving their inheritance loses their status as an heir. A waiver of inheritance in return for consideration also results in consequences for the descendants of the person waiving, unless otherwise provided in the agreement.
is how it is decreed. In an inheritance waiver agreement, heirs declare that they will not become heirs and will not receive a share of the inheritance by entering into an agreement while the testator is still alive, thereby waiving their status as heirs. The most important issue in this agreement is that the testator and their legal heirs reach a mutual agreement regarding the movable and immovable assets subject to inheritance, accept the declarations of waiver, and formalize this matter through a signed contract. The waiver of inheritance and the disclaimer of inheritance are often confused. However, both are separate legal subjects with different conditions and practical processes. A disclaimer of inheritance is only possible through legal proceedings conducted after the death of the testator. It is not possible to file for a disclaimer of inheritance while the testator is still alive. In such a case, only an inheritance waiver agreement can be made. With an inheritance waiver agreement, the status of the person who would have been an heir is terminated. The most important condition for the validity of an inheritance waiver agreement is that the testator must also accept the waiver of inheritance. In inheritance waiver agreements, both the testator and the legal heir must clearly and explicitly put their waiver of inheritance in writing and sign it. Compliance with the written form requirement in agreements is important for evidentiary purposes.
As clearly regulated in Article 528 of the Turkish Civil Code; the provision that "a testator may enter into an inheritance waiver agreement with an heir, either gratuitously or in return for consideration" makes the issue of "providing consideration" a point that requires particular attention. A testator may, while alive, decree that the heirs will waive their inheritance in return for consideration by writing this in detail in the agreement text.
Through an inheritance waiver agreement, heirs waive their inheritance shares, which they would have acquired after the death of the testator, either partially or entirely. The most significant point of an inheritance waiver agreement is the ability to make an heir who has a reserved portion right waive their inheritance. A testator may enter into an agreement with people they do not wish to be their heirs after their death, requesting that they waive their inheritance. The exact opposite of this is also frequently encountered today. To give an example; while a mother is leaving her inheritance to her two daughters after her death, she may enter into an inheritance waiver agreement with the daughter who has a better financial situation in favor of her sick daughter who is in need of care. The main objective here is for the mother to protect her heir who is in need of care after her death and to leave all or part of her inheritance to her other heir by obtaining the opinion and consent of the waiving heir through a waiver agreement. An inheritance waiver agreement is considered a negative inheritance agreement in terms of its form. Furthermore, it is accepted as a testamentary disposition. An heir who waives their inheritance gives up their future status as an heir by waiving it.
The most important conditions for the validity of inheritance waiver agreements are that they must be drawn up like a formal will. The parties to the inheritance waiver agreement must sign their declarations of will before an official and in the presence of two witnesses. Who the official may be is regulated in practice and doctrine as follows: it must be carried out by a civil court judge of peace, a notary, or persons who have been granted this authority by law. It is important for the validity that the witnesses also sign every page of the inheritance waiver agreement.