Renunciation of inheritance, known in practice as disclaiming the inheritance, is an institution that affords the heir the possibility of remaining outside the financial and legal obligations arising from the estate. Declining to take on the estate following the death of the deceased is a choice the heir may freely exercise. An heir who takes this course gives up their rights over the estate and remains outside the division. They are thereby released from the debts and responsibilities that the inheritance brings with it.
Renunciation does not always rest on a declaration of intention. Where it is manifestly apparent that at the moment of death the deceased was unable to meet their debts, the inheritance is deemed to have been renounced even if the heir makes no application to that effect.
Statutory and appointed heirs must apply to the civil court of peace by written or oral declaration within three months from the date on which they learn of their status as heir. That three-month period is preclusive in nature; where the right of renunciation is not exercised within it, the inheritance is deemed to have been accepted unconditionally.
Recourse may be had to renunciation only after the death of the deceased. Parties who wish to reach the same result during the lifetime of the deceased may conclude a contract for the waiver of inheritance. That contract enables the heir to be released in advance from the rights and obligations flowing from the status of heir. The details of the subject are addressed in our note entitled Waiver of Inheritance.
Actual Renunciation of the Inheritance
Where the heir turns down the estate of their own volition, this is termed actual renunciation. A person who takes this course may as a rule make no claim whatsoever over the estate. Moreover, the inheritance share belonging to them is transferred to their descendants or to the other heirs as though they had died before the deceased. The passing of the share of a person who renounces the inheritance left by their father to that person’s own children may be given as an example of this situation.
For an actual renunciation to take effect, the heir must notify their intention to renounce, unconditionally and without reservation, to the Civil Court of Peace of the last place of residence of the deceased, either in writing or orally. Upon request, the judge of the civil court of peace issues to the heir who has made the declaration of renunciation a document evidencing that fact.
Deemed Renunciation of the Inheritance
Article 605(2) of the Turkish Civil Code No. 4721 governs the situation in which the inheritance is deemed to have been renounced automatically:
Turkish Civil Code No. 4721 Art. 605(2)
“Where the insolvency of the deceased was manifestly apparent or had been officially established at the date of their death, the inheritance is deemed to have been renounced.”
Where the property of the deceased at the date of death is not capable of meeting their debts, a state of insolvency exists. The Code does not, however, regard the mere existence of that insolvency as sufficient; it further requires that it be manifestly apparent or have been officially established. Being manifestly apparent denotes that the deceased’s inability to pay was known at least to those close to them. Being officially established, on the other hand, means that a certificate of insolvency has been drawn up in respect of the deceased.
For a deemed renunciation to occur, the heirs need not additionally make a declaration of renunciation. Nevertheless, with a view to forestalling disputes that may arise subsequently, it is appropriate to make an application to the civil court of peace.
To Whom Is the Right of Renunciation Afforded?
Under Article 605 of the Turkish Civil Code No. 4721, the power to renounce belongs to the statutory heirs and the appointed heirs of the deceased. The State, which is counted among the statutory heirs, is liable for the debts of the deceased only to the extent of the value that has devolved upon it; the Code has nevertheless afforded the State a right of renunciation as well, in the same way as the other statutory heirs.
Statutory heirs: This category comprises the blood relatives of the deceased, their adopted child, their surviving spouse and the State.
Appointed heirs: Appointed heirship arises where the deceased, by a testamentary disposition made during their lifetime, designates as heir to the whole or a part of their estate one or more of their statutory heirs, or third parties.
Legatee: Although a legatee is not held liable for the debts of the deceased, Article 616 of the Turkish Civil Code No. 4721 has afforded this person a right of renunciation as well.
Although the power to renounce belongs as a rule to every statutory and appointed heir, capacity to act is required in order to make the declaration. It is not compulsory for the declaration to be made by the heir in person; a representative vested with special authority may also carry out this act. According to the state of capacity, the position is as follows:
- On behalf of persons wholly lacking capacity, the declaration of renunciation is made by their legal representative.
- In the case of persons of limited incapacity, the declaration may be made through the legal representative, or equally by the person themselves provided that the consent of the legal representative is obtained.
- In the case of persons under guardianship, the declaration of the guardian is not sufficient on its own; the permission of the guardianship authority is also required.
- The declaration of persons of limited capacity for whom a legal adviser has been appointed is treated as valid in the same way as the declaration of persons of full capacity.
- In marriages governed by the community of property regime, neither spouse may, without the consent of the other, renounce an item of property that would fall within the community assets; nor may they accept such property alone where the estate is insolvent.
The Form of Renunciation and the Conditions Required
How Is the Declaration of Renunciation Made?
The inheritance is deemed to have been renounced by a declaration transmitted within the period to the Civil Court of Peace by the heir themselves or by their representative. The remaining steps to be taken are of a formal nature.
The Declaration Must Be Unconditional and Without Reservation
Under Article 609(2) of the Turkish Civil Code No. 4721, the renunciation must be declared in a form containing no reservation or condition whatsoever.
Since the declaration of renunciation alters the proportions of the shares and the circle of participants in the division of the estate, it is characterised as an act creating a new legal position.
This act affects not only the heirs but also all the creditors of the deceased. For the declaration to produce legal effects, its content must therefore be intelligible to all, clear, definite and free from any doubt. Where the intention to renounce cannot be clearly discerned from the heir’s statement, or where the declaration has been made subject to a condition, the annulment of the declaration may arise.
Renunciation Through a Representative
Article 39 of the Regulation on the Application of the Provisions of the Turkish Civil Code Concerning Custody, Guardianship and Succession governs the procedure for the renunciation of an inheritance.
Regulation Art. 39(2)
“Where the heir renounces the inheritance, the full identity of the renouncing heir is established by a record to be drawn up by the judge of the court of peace, and the declaration of renunciation is signed by the person renouncing the inheritance or, where the request has been made by a representative authorised in this regard, by that representative, and is signed by the judge and the court clerk. The representative’s power of attorney is annexed to that record.”
As a consequence of the provision, in order for a request for renunciation to be transmitted through a representative, the power of attorney must contain special authority to that effect. The Court of Cassation has adopted the same approach and has delivered judgments of precedential character.
Court of Cassation, 2nd Civil Chamber, judgment dated 30.09.2004, case no. 9602, decision no. 10936:
“…Under Article 39(2) of the Regulation on the Application of the Provisions of the Turkish Civil Code Concerning Custody, Guardianship and Succession, special authority must be present in the representative’s power of attorney for a request for the renunciation of an inheritance….”
Time Limits and the Statute of Limitations
Article 606 of the Turkish Civil Code No. 4721 has fixed the period for renunciation at three months. The starting point of the period differs according to the position of the heir and the circumstances of the case:
- For statutory heirs, the period begins to run upon the death of the deceased. Where the heir proves that they learned of their status at a later date, the starting point shifts accordingly. This period constitutes the final date for the acceptance or renunciation of the inheritance.
- For heirs appointed by will, the three-month period begins when the will drawn up by the deceased is officially notified to them. That is to say, the persons in whose favour the disposition was made must decide whether to accept or renounce within three months from the date of notification.
- Where an inventory of the estate has been taken by way of a protective measure, each heir may exercise the right of renunciation within three months from the date on which the completion of the inventory is notified to the heirs by the judge of the civil court of peace.
- Where important grounds exist, the judge of the civil court of peace may grant an additional period to the statutory or appointed heirs, or may fix a new period. An heir who fails to make a declaration of renunciation within the period is deemed to have accepted the inheritance unconditionally.
Lapse of the Right of Renunciation
Acceptance of an inheritance does not as a rule require a declaration. Where, by contrast, the heir declares before the expiry of the renunciation period that they expressly accept the inheritance, the right of renunciation is extinguished. In the same way, an heir who makes no declaration of renunciation within the statutory period accepts the inheritance unconditionally.
Article 610(2) of the Turkish Civil Code No. 4721, for its part, has treated excessive interference by one of the heirs in the affairs of the estate as tacit acceptance and has provided that in such a case the right of renunciation lapses.
Conduct such as using the property in the estate, seeking the dissolution of co-ownership in that property, bringing an action for recovery of property, transferring an inheritance share or collecting the claims of the deceased is not regarded as belonging to the ordinary affairs of the estate. Acts of that nature are assessed as a tacit acceptance of the inheritance.
Consequences of Renunciation
Renunciation by One of the Statutory Heirs
A declaration of renunciation takes effect only in respect of the heir who makes it. The share of the statutory heir who renounces devolves upon the other entitled persons as though that heir had not been alive at the moment the succession opened.
Renunciation by All the Nearest Statutory Heirs
Turkish Civil Code No. 4721 Art. 612 governs this possibility as follows:
Turkish Civil Code No. 4721 Art. 612
“An inheritance renounced by all the nearest statutory heirs is liquidated by the court of peace in accordance with the provisions on bankruptcy.”
In that event the civil court of peace conducts the liquidation within the framework of the provisions on bankruptcy. If a surplus remains at the end of the liquidation, that surplus is distributed to the heirs as though no renunciation had ever been made.
The Inheritance Passing to the Surviving Spouse
Where all those forming the descendants of the deceased make a declaration of renunciation, the inheritance passes to the surviving spouse and the spouse becomes the sole heir to the estate.
Renunciation in Favour of Subsequent Heirs
Under Article 614 of the Turkish Civil Code No. 4721, heirs may, when making a declaration of renunciation, request that before the liquidation the question whether they accept the inheritance be put to the heirs coming after them. Where such a request is made, the renunciation is communicated by the judge of the court of peace to the heirs in the next rank. If those persons do not declare an intention to accept within one month, they are deemed to have renounced. Thereafter the inheritance is liquidated in accordance with the provisions on bankruptcy and the values remaining after the liquidation are given to the heirs of the preceding rank.
Renunciation by an Appointed Heir
Where an appointed heir makes a declaration of renunciation, their share passes as a rule to the nearest statutory heir of the deceased. It is, however, possible for the deceased to establish a different arrangement by testamentary disposition. The deceased may provide that in the event of renunciation the estate is not to devolve upon their own statutory heirs, and may equally determine that the share is to pass to the statutory heirs of the person renouncing, or to some entirely different person.
Courts With Subject-Matter and Territorial Jurisdiction
The rules on this matter are laid down in the Turkish Civil Code No. 4721 and the Code of Civil Procedure No. 6100.
Court with territorial jurisdiction: Territorial jurisdiction belongs to the Civil Court of Peace of the last place of residence of the deceased. Where the last place of residence of the deceased is within the borders of Türkiye, the Civil Court of Peace of that place has jurisdiction.
Court with subject-matter jurisdiction: As regards subject-matter jurisdiction too, the same court has been designated, namely the Civil Court of Peace of the last place of residence of the deceased.
Protection of Creditors
As Regards the Creditors of the Deceased
Where the property of the deceased is insufficient to meet their debts, heirs who have renounced the estate may be held liable towards the creditors of the deceased in respect of certain items of property. Those items are transfers subject to equalisation, received by the renouncing heirs within the five years preceding the death and giving rise to an obligation to restore them in the division. The scope of the liability varies according to the heir’s intention: heirs acting in bad faith are held liable for the full value of the transfer subject to restitution, whereas the liability of heirs acting in good faith is limited to their enrichment at the moment of restitution. No such liability arises, however, in respect of ordinary expenditure on education and training or a trousseau given in accordance with custom.
As Regards the Personal Creditors of the Heir
Where an heir who is unable to meet their debts renounces the estate with the aim of harming their creditors, the creditors or the bankruptcy estate may bring an action for the annulment of the renunciation within six months from the date of the renunciation. Whether that action may be entertained depends on the claimants not having been offered sufficient security and on it being shown that the heir genuinely acted in bad faith.
If at the conclusion of the proceedings the court annuls the renunciation made in bad faith, the inheritance is officially liquidated. If during the liquidation a value falls to the share of the renouncing heir, the rights of the objecting creditors are satisfied first. The remaining values are then given to the heirs who take the place of the renouncing heir. That is to say, those who benefit from the surplus are not the renouncing heir themselves, even though the renunciation has been annulled, but the persons who take their place.
The details of the subject are addressed in our note entitled Action for the Annulment of a Renunciation of Inheritance Made in Bad Faith.
Frequently Asked Questions
Is it possible to withdraw a declaration of renunciation?
As a rule the declaration takes effect from the moment it reaches the judge of the Civil Court of Peace and cannot be withdrawn thereafter. Nevertheless, the annulment of a declaration of renunciation made under the influence of mistake, fraud or duress, that is, under a defect of intent, may be sought.
Is an heir liable for the tax debts of the deceased?
Just as the heir takes over the rights and claims of the deceased, they are also liable for their debts. Tax debts accordingly fall within the heir’s sphere of liability. The subject is addressed separately in our note entitled Are Heirs Liable for the Deceased’s Tax Debts and Penalties?
Does liability arise for judicial and administrative fines?
By virtue of the principle that offences and penalties are personal, an heir cannot be held liable for judicial and administrative fines imposed on the deceased. For details, our note entitled Are Heirs Liable for Judicial and Administrative Fines? may be consulted.
What is the difference between renunciation of inheritance and waiver of inheritance?
Renunciation is an act to which recourse may be had only after the death of the deceased. A waiver, by contrast, arises during the lifetime of the deceased and requires a contract of waiver to be concluded between the heir and the deceased. By means of that contract the heir is released in advance from the rights and obligations that heirship brings.
How is the legal position of a renouncing heir affected?
The position of an heir who makes a declaration of renunciation differs from that of an heir who accepts the inheritance on three points:
- No right of claim over the estate remains: The renouncing heir cannot take part in the division and cannot assert any right over the assets of the estate.
- The share is transferred to the other heirs: The share that would have belonged to them had they accepted passes to the other heirs.
- The order of succession changes: The person who renounces is treated as never having acquired the status of heir at the moment of the deceased’s death, and the heirs next in order take their place.
Is the support of a lawyer necessary for the act of renunciation?
An heir may renounce the estate by a declaration made to the Civil Court of Peace. Since this act gives rise to serious consequences from both a statutory and a legal standpoint, however, obtaining the support of a lawyer is recommended. There are procedural rules and technical details to be observed in the process; legal guidance helps the heir to grasp their rights and obligations in full and to reach a sound decision.
How long is the period for renouncing an inheritance?
Under Article 606 of the Turkish Civil Code No. 4721 this period is three months. The details concerning the periods are examined in our note entitled The Time Limit for Renouncing an Inheritance.
Independent Legal Assessment
The mistake most frequently encountered in renunciation files is the mechanical calculation of the three-month period from the date of death. For statutory heirs, however, what is decisive is the moment at which the status of heir was learned, and the burden of proof as to that moment lies with the heir. For heirs appointed by will the date of notification is taken as the basis, and in files in which an inventory of the estate has been taken, the date on which the inventory was notified. Where it is not clarified at the outset by which criterion the period runs, this preclusive period can easily be missed.
The second critical heading is the inadvertent lapse of the right of renunciation. Conduct such as using an item of immovable property in the estate, collecting a claim or seeking the dissolution of co-ownership may be assessed as tacit acceptance. In files in which renunciation is contemplated, every act that touches the estate must therefore be assessed separately before the declaration is made.
In an individual case we recommend that the following points be observed as a matter of priority:
- Establishing by documentary evidence the date on which the period began, according to the capacity of the heir
- Drawing up a schedule of the assets and liabilities of the estate and choosing between actual renunciation and deemed renunciation
- Adding no reservation or condition, in accordance with the rule that the declaration must be unconditional and without reservation
- Verifying, in applications to be made through a representative, that the power of attorney contains special authority
- Obtaining in advance, in respect of heirs whose capacity is restricted, the permission of the guardianship authority
- Examining, from the standpoint of the risk of tacit acceptance, which acts concerning the estate property were carried out before the declaration
Independent Legal provides advisory and litigation services at every stage of succession law, from applications for the renunciation of an inheritance to the establishment of a deemed renunciation and the liquidation of the estate.