Disinheritance — known colloquially in Turkish as mirastan men, exclusion from the inheritance — is an exceptional institution that prevents an heir entitled to a reserved portion from obtaining the share the law guarantees to that heir. The person against whom such a disposition is made loses the entirety of the share he or she would have taken from the estate. That lost share does not, however, remain in limbo: the disinherited person is treated as though he or she had died before the deceased, and the share passes to that person’s descendants if any exist, and failing descendants, to the statutory heirs of the deceased.
The Turkish Civil Code No. 4721 addresses disinheritance in two distinct forms, punitive and protective. The intention to disinherit may be expressed only through a will or a contract of succession, both being testamentary dispositions, and the ground for disinheritance must be stated in the disposition. Where the conditions are met, the person against whom a disinheritance decision has been made may also apply to the court with claims for annulment and abatement against that disposition.
One of the questions most frequently raised in practice concerns the fate of the children of the disinherited person. As we set out in detail below, a disinheritance disposition does not extinguish the children’s status as heirs.
The Nature of Disinheritance as a Legal Institution
The concept of the reserved portion denotes that part of the estate over which the deceased may not freely dispose, being set aside by law for particular heirs. The general rule is that the deceased cannot encroach upon that part. Disinheritance, as regulated in the Turkish Civil Code, is one of the exceptional situations in which an heir entitled to a reserved portion is prevented from benefiting from that guarantee. Where the conditions listed in the Code are satisfied, the deceased may disinherit that heir by a unilateral testamentary disposition. An heir who is the subject of such a disposition may be deprived of the inheritance in its entirety, including the reserved portion, or, depending on the type of disinheritance, may have to be content with a reduced reserved portion.
The Court of Cassation characterises this institution as a limitation placed upon the capacity to inherit. In its decision No. 2001/2-470 E., 2001/536 K. of 20 June 2001, the Assembly of Civil Chambers of the Court of Cassation made the following assessment:
“Article 13 of our Constitution likewise permits such a limitation. Our legislation contains provisions restricting the capacity to inherit, namely limitations such as exclusion from the inheritance regulated in Article 520 of the Civil Code and disinheritance regulated in Article 457 thereof.”
A separate note titled Disinheritance – Exclusion from the Inheritance addresses the general framework of this institution.
The Grounds for Disinheritance Provided by Law
As noted above, the legislature has adopted two distinct types of disinheritance: punitive disinheritance, which is penal in character, and protective disinheritance, which is directed at safeguarding a descendant mired in debt.
Punitive Disinheritance
Punitive disinheritance arises where certain conduct on the part of an heir entitled to a reserved portion justifies the disinheritance. The statutory aim here is to prevent an heir who has fundamentally damaged family relations from taking a share of the estate.
The circumstances in which the deceased may resort to this course are set out in Article 510 of the Turkish Civil Code:
Turkish Civil Code Art. 510
“In the following cases, the deceased may, by a testamentary disposition, disinherit an heir entitled to a reserved portion:
1. If the heir has committed a serious criminal offence against the deceased or against one of the deceased’s close relatives,
2. If the heir has substantially failed to perform the obligations arising under family law owed to the deceased or to the members of the deceased’s family.”
The practical meaning of the provision is this: if the heir has committed a serious criminal offence against the deceased or against someone in the deceased’s immediate circle, or has appreciably neglected the duties imposed by family law, the deceased may disinherit that person and thereby close off access to the reserved portion.
Protective Disinheritance
Alongside punitive disinheritance, Turkish law also recognises a protective form. The purpose pursued in this second scenario is not to punish; it is to prevent the inheritance that would pass to a descendant unable to meet his or her debts from falling into the hands of creditors. The provision is found in Article 513 of the Turkish Civil Code:
Turkish Civil Code Art. 513
“The deceased may disinherit a descendant in respect of whom a certificate of insolvency exists, as regards one half of that descendant’s reserved portion. However, it is a condition that this half be allocated to the born and unborn children of the disinherited person.”
Under this article, where a certificate of insolvency has been issued in respect of a descendant, the deceased may disinherit that descendant only as regards one half of the reserved portion. For this course to be regarded as valid, a further condition is required: the half subject to the disinheritance must have been allocated to the children of the disinherited person.
Who Bears the Burden of Proof?
We have listed the grounds for disinheritance above. But when a dispute arises, on whom does it fall to prove that those grounds genuinely exist? In settled practice, the burden of proof rests on the shoulders of the heirs who benefit from the disinheritance disposition. The judgment of the 14th Civil Chamber of the Court of Cassation No. 2015/5400 E., 2015/3549 K. of 31 March 2015 states this principle plainly:
“…Where the heir commits a serious criminal offence against the deceased or against one of the deceased’s close relatives, or substantially fails to perform the obligations arising under family law owed to the deceased or to the members of the family, the deceased may, by a testamentary disposition, disinherit an heir entitled to a reserved portion. A person who has been disinherited may neither take a share of the inheritance nor bring an action for abatement. If the ground for disinheritance is stated in the testamentary disposition, the disinheritance is valid. It falls to the heir who benefits from the disinheritance to prove the existence of the ground for disinheritance.
Article 512(3) of the Turkish Civil Code provides that “If the existence of the ground cannot be proved, or if the ground for disinheritance is not stated in the disposition, the disposition shall be carried out save in respect of the heir’s reserved portion; however, if the deceased made this disposition owing to a manifest error as to the ground for disinheritance, the disinheritance shall be invalid”.
On the evidence gathered and the file as a whole, the existence of the grounds for disinheritance has not been established by the respondents (those benefiting from the disinheritance). In these circumstances, the court below ought to have considered that, pursuant to Article 512(3) of the Turkish Civil Code, the testamentary disposition directed at disinheritance would be carried out save in respect of the claimant heir’s reserved portion (to the extent of the deceased’s disposable quota) — in other words, that the claimant could claim the reserved portion; instead it ordered the annulment of the will in its entirety, which was not considered correct, and the judgment must therefore be quashed on that ground…”
The Consequences Produced by a Disinheritance Disposition
In files involving punitive disinheritance, the heir entitled to a reserved portion, being deprived of that share in its entirety, also loses the status of heir. If that person has heirs of his or her own who are entitled to reserved portions, the lost share passes to them. Put differently, the disinherited person is treated as having departed this life, and entitlement to the share passes to his or her heirs.
The picture is different with protective disinheritance. Because the disinheritance is partial, the heir retains the status of heir and continues to take part in the distribution, but does so only to the extent of one half of the reserved portion.
The Effect of Disinheritance on the Descendants
The first and direct consequence of disinheritance is that the disinherited descendant cannot obtain the reserved portion, either in part or in full. In punitive disinheritance, unless the deceased has made a separate provision to that effect, the lost share passes to the descendants of the disinherited person, and where there are no descendants, to the statutory heirs of the deceased. That transfer rests on the assumption that the disinherited person died before the deceased. Consequently, the children and other heirs of the disinherited person suffer no loss of rights.
Article 511 of the Turkish Civil Code sets out this solution in express terms:
Turkish Civil Code Art. 511
“Unless the deceased has disposed otherwise, the share of the inheritance of the disinherited person passes, as though that person had died before the deceased, to the descendants of the disinherited person if any exist, and failing them, to the statutory heirs of the deceased.
The descendants of the disinherited person may claim their reserved portion as though that person had died before the deceased.”
The same approach is reflected in the case law. In its decision No. 2018/3409 E., 2021/3708 K. of 2 June 2021, the 14th Civil Chamber of the Court of Cassation used the following words:
“A person who has been disinherited may neither take a share of the inheritance nor bring an action for abatement. Unless the deceased has disposed otherwise, the share of the inheritance of the disinherited person passes, as though that person had died before the deceased, to the descendants of the disinherited person if any exist, and failing them, to the statutory heirs of the deceased. The descendants of the disinherited person may claim their reserved portion as though that person had died before the deceased.”
In protective disinheritance, the protection of the descendants is built into the structure of the institution from the outset. Under Article 513 of the Turkish Civil Code, although the deceased may disinherit a descendant in respect of whom a certificate of insolvency exists as regards one half of the reserved portion, that half must be allocated to the born and unborn children of the disinherited person. The purpose of the provision is to secure the position of the disinherited person’s descendants as heirs and to prevent them from suffering any loss of rights.
Frequently Asked Questions
Is representation by a lawyer mandatory in disinheritance matters?
The Turkish legal system allows parties to conduct their own defence before the courts; save for limited exceptions, representation by counsel is not compulsory. No such requirement exists in matters of succession law either. That said, the many-layered structure of succession legislation can, in proceedings conducted by those without legal training, give rise to errors of both procedure and substance that cannot afterwards be put right.
Can the deceased encroach upon reserved portions?
As a rule, no; the deceased has no power of disposal over the part of the estate set aside for heirs entitled to reserved portions. Disinheritance is precisely the exception to that rule. Where one of the grounds for disinheritance listed in the Code has materialised, it becomes possible to disinherit an heir entitled to a reserved portion and to prevent that heir from taking a share of the estate.
To whom does the share of a disinherited person pass?
Unless the deceased has made a provision to the contrary, that share passes — the disinherited person being deemed to have died before the deceased — to that person’s descendants if any exist, and where there are no descendants, to the statutory heirs of the deceased. In addition, the descendants of the disinherited person may, relying on the same assumption, claim their own reserved portion.
On what grounds may children be disinherited?
One half of a descendant’s share of the inheritance is a reserved portion; that is, as a rule the deceased may not touch half of a child’s share. The exception to that rule is the institution of disinheritance. A descendant may be disinherited where he or she has committed a serious criminal offence against the deceased or against one of the deceased’s close relatives, or has substantially failed to perform the duties arising under family law owed to the deceased or to members of the family.
If a child is disinherited, is the grandchild also excluded from the inheritance?
No. Unless the deceased has made a disposition to the contrary, the descendants of the disinherited person are not themselves treated as disinherited. The disinherited person is regarded as having died before the deceased, and the share of the inheritance passes to that person’s descendants. Accordingly, when a child is disinherited, the share of the inheritance belonging to that child passes to the grandchild born of that child.
The Independent Legal Assessment
In disinheritance disputes, the decisive element is more often not the disposition itself but whether the ground stated in that disposition can be proved. Under Article 512(3) of the Turkish Civil Code, where the ground cannot be established or is not stated in the disposition at all, the disinheritance is not treated as wholly invalid; the disposition is applied only in respect of the part falling outside the reserved portion. Overlooking that distinction can lead to an action being built around the wrong claim. The position of the descendants must also be addressed separately: since disinheritance is not a sanction that skips a generation, the position of the disinherited person’s children should be clarified from the outset when the parties to the action are identified.
In any given file, we recommend that the following matters be assessed first:
- Whether the ground for disinheritance has been stated in the testamentary disposition together with the concrete facts relied upon
- Determining whether the disinheritance is punitive or protective in character and, accordingly, whether the whole or only one half of the share is affected
- In protective disinheritance, whether the requirement to allocate one half of the reserved portion to the born and unborn children has been complied with
- Devising the evidential strategy on the footing that the burden of proof lies with the heirs who benefit from the disinheritance
- Anticipating the possibility that the disinherited person’s descendants will join the proceedings with a claim for their reserved portion
- Examining the routes of annulment and abatement against the disposition separately, in terms of both their time limits and their conditions
Independent Legal provides advisory services and conducts litigation at every stage of succession law, from the legal review of disinheritance dispositions to the pursuit of reserved portion and abatement claims.