The family residence is not only the centre of the spouses’ shared life but also a secure space meeting their need for shelter, and it is regarded as one of the most important elements of family life. When one of the spouses dies, however, that dwelling may turn into an item of property over which the heirs or third parties assert claims in the course of the distribution of the estate. The picture that emerges can jeopardise the surviving spouse’s right to shelter and cause serious hardship in both pecuniary and non-pecuniary terms.
Article 240 of the Turkish Civil Code No. 4721 addresses this risk by allowing the surviving spouse, within the framework of the participation in acquired property regime, to request the allocation of the family residence to the surviving spouse set off against the participation claim. The purpose of the provision is to protect the surviving spouse during the distribution process and to prevent that spouse from being uprooted from the dwelling in which he or she has lived for years.
In this briefing note we examine the request for allocation under Turkish Civil Code No. 4721 Art. 240 in terms of the conditions required, the legal procedure to be followed, the applicable time limits and the practice of the courts. We also consider the institution of allocation set off against the inheritance share, which comes into play where no participation claim exists.
Legal Basis of Allocation
The family residence is defined as the place in which the spouses conduct their shared life throughout the marriage, establish their daily routine, and which forms the centre of family life. That dwelling is not merely a physical structure; it is a living space carrying non-pecuniary and legal significance for the family.
Our Civil Code lays down specific provisions enabling the surviving spouse to continue living in that dwelling upon the death of one of the spouses. Under the Turkish Civil Code, allocation rests on two separate legal bases:
- Allocation set off against the participation claim, within the framework of the participation in acquired property regime (Turkish Civil Code No. 4721 Art. 240)
- Allocation set off against the inheritance share deriving from the estate (Turkish Civil Code No. 4721 Art. 652)
The route based on the participation claim is examined in detail first below, followed by the second route available where no participation claim exists.
Allocation of the Family Residence under the Participation in Acquired Property Regime
The Turkish Civil Code governs the matrimonial property regimes between spouses and determines how property acquired during the marriage is to be divided. Under the participation in acquired property regime, the surviving spouse is granted the power to claim the family residence.
Pursuant to Turkish Civil Code No. 4721 Art. 240, where one of the spouses dies, the surviving spouse may raise one of two requests set off against the participation claim: that spouse may ask for the ownership of the dwelling to be transferred to him or her, or may instead request that a usufruct (right of use) or a right of habitation be granted over the dwelling.
These powers are nevertheless limited to the amount of the surviving spouse’s participation claim. If the value of the dwelling exceeds the participation claim, the difference must be paid by the surviving spouse.
Ownership or usufruct?
The provision grants the surviving spouse a right of election. In practice a considerable gap may arise between the value of the dwelling and the participation claim, and it may not be possible to cover that gap. In such a case the surviving spouse may, instead of acquiring ownership, choose to request a usufruct or a right of habitation by paying a lower sum or without making any payment at all.
This flexibility allows the surviving spouse to choose a solution suited to his or her own financial means. An arrangement may thus be established under which that spouse can carry on living without having to share the dwelling with the heirs.
Conditions for Allocation Set Off Against the Participation Claim
The surviving spouse’s ability to claim ownership or a usufruct over the family residence and the household goods depends on the fulfilment of a series of conditions laid down in the Turkish Civil Code. These conditions serve to protect the surviving spouse’s right to shelter during the distribution of the estate.
The Participation in Acquired Property Regime Being in Force at the Time of Death
The participation in acquired property regime is the statutory matrimonial property regime between spouses and determines the principles governing the division of property acquired during the marriage. Turkish Civil Code No. 4721 Art. 240 requires that this regime have remained in force until the date of death for a request for allocation to be made.
If the spouses moved to a different matrimonial property regime before the death, or if a different regime was adopted by a court decision, the provision cannot be applied and the surviving spouse cannot raise this request. That said, since the practice of concluding a matrimonial property agreement is not widespread in Türkiye, the great majority of marriages are subject to the participation in acquired property regime. Turkish Civil Code No. 4721 Art. 240 therefore finds frequent application in requests for allocation.
The Surviving Spouse Having a Participation Claim
A participation claim denotes the entitlement of one spouse, upon termination of the participation in acquired property regime — for example on the death of one of the spouses or on divorce — to the surplus value in the other spouse’s acquired property. The institution rests on the assumption that both spouses contributed, in pecuniary and non-pecuniary terms, throughout the marriage. In calculating the claim, the debts are deducted from the total value of the spouses’ acquired property to arrive at the surplus value; half of that value constitutes the other spouse’s participation claim.
The amount of the claim is not decisive here. What matters is that, where the participation claim cannot fully cover the value of the dwelling or of the usufruct, the surviving spouse is prepared to pay the shortfall.
In short: if a participation claim exists, it may be used by being set off against the ownership of the dwelling or against the usufruct. Where the claim is insufficient, allocation may be requested provided that the shortfall is paid. The equalisation payment is determined by the court, which establishes the market value of the dwelling.
Where these conditions are met, the surviving spouse may request that the family residence be allocated to him or her set off against the participation claim or by adding a sum on top of it.
The Existence of an Intention to Continue the Former Way of Life
Turkish Civil Code No. 4721 Art. 240 requires, for a request for allocation to be granted, that the surviving spouse intend to continue his or her former way of life in that dwelling. The provision is founded on the idea that, following the death of a spouse, the surviving spouse should be protected in social and economic terms and enabled to maintain his or her standard of living. The legislature emphasises that a person suffering the emotional and financial upheaval of losing a spouse should not be torn away from the living environment to which he or she is accustomed.
Conversely, if it is clearly apparent that the surviving spouse holds no such intention, the request may be dismissed. Typical examples in which a court may reach such a conclusion are as follows:
- The dwelling has been left and permanent residence has been taken up elsewhere,
- The family residence has been let or sold and life has begun in another immovable property,
- It has been clearly established that a different way of life has been adopted instead of continuing the former arrangement.
As regards proof of that intention, the surviving spouse’s need to continue living in the family residence is accepted in practice as a presumption. For that reason the courts do not require strict formal conditions when assessing whether the spouse genuinely intends to continue his or her former way of life; they conduct an examination based on the circumstances of the particular case and on the ordinary course of life.
The Surviving Spouse Raising a Claim to a Right in Rem
Turkish Civil Code No. 4721 Art. 240 does not confer on the surviving spouse a right in rem over the family residence directly. An express request is required for the right to be established in favour of the surviving spouse. Since that request is strictly personal in nature, it may be raised only by the surviving spouse; it cannot be transferred and does not pass to the surviving spouse’s heirs.
As the family residence forms part of the deceased spouse’s estate, the request must be directed at the community of heirs or at the appointed representative. Where the estate is insolvent or where all the heirs renounce the inheritance, the surviving spouse must notify the Civil Court of Peace of that request.
Payment of the Difference Where the Value of the Dwelling Exceeds the Participation Claim
When the participation in acquired property regime comes to an end by reason of death, the surviving spouse may request the allocation of the family residence set off against the participation claim. It should not be overlooked, however, that this request is not made free of charge. The participation claim is the principal financial entitlement supporting the request; where the value of the dwelling exceeds that claim, the difference must be paid.
The participation claim and the additional sum
The participation claim is a transferable claim. If the surviving spouse has transferred that entitlement, he or she loses the power to claim ownership or a usufruct over the dwelling under Turkish Civil Code No. 4721 Art. 240. Where the claim does not cover the value of the dwelling, the surviving spouse may acquire the dwelling by paying the shortfall. In outline, the process follows these steps:
- The calculation is made on the basis of the sale price, that is, the market value of the dwelling,
- The amount of the surviving spouse’s participation claim is determined,
- If the claim does not cover the value of the dwelling, the spouse is allowed to acquire it by paying the difference.
The court determines the equalisation payment having regard to the current market value of the dwelling. Where ownership is claimed, the market value at the time of liquidation is taken as the basis. Where a usufruct or a right of habitation is requested, the value of those rights is determined by a calculation directed at the future.
Time Limits for the Request for Allocation
The Turkish Civil Code imposes no express limitation on the period within which the surviving spouse may raise a request for allocation. The request must nevertheless be raised before certain legal processes have been completed and before any disposition has been made over the dwelling.
The period within which the request may be raised
- The request may be raised at the earliest as from the date of the spouse’s death.
- The request may be brought forward until the liquidation of the matrimonial property regime has been completed.
- Once the family residence has left the ownership of the community of heirs, it is no longer possible to make the request.
Statute of limitations
No limitation period is expressly regulated in the Code in respect of the rights conferred on the surviving spouse under Turkish Civil Code No. 4721 Art. 240. Since the request is directly connected with the participation claim, the prevailing view in practice is that the general limitation periods applicable to the participation claim should apply. On that basis:
- The request must be made within one year from the date on which the matrimonial property regime came to an end and the participation claim became known.
- In any event, the statute of limitations runs out upon the expiry of ten years from the date on which the matrimonial property regime came to an end.
The Court with Subject-Matter and Territorial Jurisdiction
As regards subject-matter jurisdiction, the Family Court is the court with jurisdiction in actions concerning the allocation of the family residence to the surviving spouse under the participation in acquired property regime.
As regards territorial jurisdiction, pursuant to Turkish Civil Code No. 4721 Art. 214 the court of the deceased spouse’s last place of domicile has jurisdiction. This rule produces two consequences: that jurisdiction is mandatory in nature, and the court must therefore have regard to the question of jurisdiction of its own motion.
Allocation Set Off Against the Inheritance Share (Turkish Civil Code No. 4721 Art. 652)
Under the Turkish Civil Code, unless the spouses have agreed on a different matrimonial property regime, the “participation in acquired property regime” applies between them. For that reason, a participation claim will in most cases arise for the surviving spouse upon the death of one of the spouses.
There are, however, situations in which no participation claim arises at all. In particular, property acquired before 1 January 2002, the date on which the Turkish Civil Code entered into force, falls outside the scope of that regime; immovable property purchased before that date is not included in the calculation of the participation claim even if it has the character of a family residence.
The result is that the surviving spouse cannot make a request for allocation under Turkish Civil Code No. 4721 Art. 240, because he or she has no participation claim over the family residence.
So that the surviving spouse does not suffer hardship and may have a dwelling in which to carry on his or her life, the legislature has opened the route of a request for allocation set off against the inheritance share under Turkish Civil Code No. 4721 Art. 652.
Turkish Civil Code No. 4721 Art. 652 – Allocation of the Family Residence Set Off Against the Inheritance Share
“The surviving spouse may request that the family residence in which he or she lived together with the deceased and the household goods be allocated to him or her, set off against his or her inheritance share.
If the heirs object to this request, the court shall render a decision in conformity with equity, assessing all the circumstances of the estate.
If the surviving spouse’s inheritance share does not cover the value of the dwelling and the household goods, payment of the shortfall to the other heirs may be requested.”
Conditions for a request for allocation set off against the inheritance share
For the surviving spouse to make a request under Turkish Civil Code No. 4721 Art. 652, the following conditions must be fulfilled cumulatively:
- The surviving spouse must have the status of heir: The spouse must be among the heirs.
- The dwelling and the household goods must form part of the estate: The immovable property and the goods whose allocation is sought must be included in the deceased’s assets.
- There must be no disposition upon death: If the deceased spouse made a disposition over the family residence by will or by a contract of inheritance, the surviving spouse’s request may be restricted.
- An express request must be raised: Allocation does not occur automatically; the surviving spouse must make an express application to that effect.
- There must be a legitimate reason: The court assesses whether there is a legitimate reason requiring the surviving spouse to remain in the dwelling — for example, the need to continue the former way of life.
- The difference in value must be covered: If the value of the dwelling exceeds the surviving spouse’s inheritance share, the shortfall may have to be paid.
The protection afforded by the provision
Where the inheritance share does not cover the value of the dwelling or the household goods, the surviving spouse may obtain ownership of the immovable property by paying the shortfall. That spouse is thereby protected against disputes that may arise from the dwelling being divided among the heirs or sold.
Leaving the family residence to the surviving spouse is treated as a priority option during the distribution of the estate. Where the heirs object to the request, the court examines all the circumstances of the estate and renders a decision in conformity with equity.
The Independent Legal Assessment
Because requests for the allocation of the family residence arise at the point where the liquidation of the matrimonial property regime intersects with the distribution of the estate, they are in practice most often pursued together with an action for the participation claim, the determination of the estate and requests for the dissolution of joint ownership. Choosing the correct legal basis for the request is decisive: in files in which no participation claim exists, reliance on Turkish Civil Code No. 4721 Art. 240 will come to nothing, while the route under Turkish Civil Code No. 4721 Art. 652 may remain open. This distinction must be drawn at the outset, particularly in the case of immovable property acquired before 1 January 2002.
The second critical point is timing. Once the dwelling leaves the ownership of the community of heirs, the request becomes irreversibly impossible. It is therefore important to act before steps towards distribution have begun.
In a particular file, the following headings should be prioritised:
- Establishing the matrimonial property regime in force as at the date of death and any matrimonial property agreement
- Calculating the participation claim, comparing it with the market value of the dwelling and anticipating the equalisation payment
- Making the choice between ownership and a usufruct or right of habitation having regard to the ability to pay
- Compiling domicile records, utility subscriptions and similar evidence showing that the former way of life has been continued
- Directing the request to the community of heirs or to the appointed representative in due form
- Documenting the starting points of the one-year and ten-year limitation periods
Independent Legal advises on and conducts litigation concerning requests for the allocation of the family residence in disputes arising from the liquidation of the matrimonial property regime and the distribution of the estate.