The ending of a marriage by death does not give rise to a single right for the spouse left behind. The surviving spouse acquires, on the one hand, the capacity of heir arising from the statute and, on the other, holds an independent claim arising from family law over the estate built up during the marriage. Confusing these two rights is the source of the most frequently encountered errors of calculation in practice.
The path to the correct result lies in observing the sequence: the matrimonial property regime between the spouses is liquidated first, the liquidation claim, which is in the nature of a debt of the estate, is set aside from the estate, and the shares of inheritance are calculated on the net value that remains. In this respect the liquidation of the matrimonial property regime may be characterised as a preliminary stage that precedes the division of the inheritance.
The status of the surviving spouse as an heir, the criteria by which their share is determined, the guarantee of the reserved portion and the reflection in the division of the rights arising from the matrimonial property regime are regulated in detail in the Turkish Civil Code No. 4721. In this briefing note we address the method of calculating the share, the relationship between the matrimonial property regime and the inheritance, claims relating to the family residence, the question of equalisation and the procedural matters that come to the fore in the proceedings.
The Surviving Spouse’s Capacity as a Statutory Heir
The fundamental provision on the spouse’s status as an heir is found in Article 499 of the Turkish Civil Code No. 4721. Pursuant to this provision the surviving spouse becomes a statutory heir at the moment of the deceased’s death without the need for any further step; the capacity of heir arises directly from the statute.
This position of the spouse does not rest on the same legal footing as the succession of blood relatives. The spouse belongs to no class of heirs; nonetheless, the spouse may share in the estate together with the deceased’s descendants, with their mother and father, or with heirs of more remote classes. The proportion of the share is likewise affected by that combination, that is to say by which class of heirs is alive.
Nor is the spouse’s position under the law of inheritance merely a question of proportion. Alongside their statutory share, the guarantee of the reserved portion, claims arising from the matrimonial property regime, requests for allocation of the family residence and certain possibilities relating to the protection of the estate are also among the legal instruments available to the spouse.
The Surviving Spouse’s Share by Class of Heirs
The proportion of the estate falling to the spouse is not fixed; as the class of heirs inheriting alongside the deceased changes, so does the proportion. The legislator has regulated separately the cases in which the spouse inherits together with the descendants, with the second class or with the third class, and has prescribed a different proportion for each.
Since the spouse falls outside the system of classes, they may share in the estate together with any class. For this reason the first task to be carried out before beginning the calculation is to establish who the deceased’s surviving statutory heirs are.
Inheriting Together with the Descendants
If the deceased has children, grandchildren or heirs of a still lower generation, the spouse’s share is one quarter of the estate. The remainder of the estate is divided equally among the members of the descending line.
If a child predeceased the deceased, the share that would have fallen to that child passes, in accordance with the principle of succession, to that person’s own descendants.
Inheriting Together with the Second Class
If there are no descendants, the spouse shares in the estate together with the heirs of the second class. The mother, the father, the siblings and the descendants of the siblings make up this class.
In such a situation the spouse’s share rises to one half of the estate; the remaining half is distributed among the heirs of the second class.
Inheriting Together with the Third Class
Where there are no heirs in the first and second classes, it is the turn of the third class. The grandmother and grandfather, together with uncles and aunts on both the paternal and maternal sides and their descendants, fall within this class.
In this eventuality the spouse’s share rises to three quarters of the estate. The remaining quarter is divided among the heirs of the third class.
The Whole Estate Passing to the Spouse
If none of the deceased’s descendants, mother and father, siblings, grandmother and grandfather or their descendants is alive, the whole of the estate passes to the surviving spouse.
In this situation the spouse acquires the capacity of sole statutory heir and the entirety of the estate passes to them. For that result to arise, however, there must be no heir appointed by the deceased and no valid disposition upon death.
The Spouse’s Position as Regards the Reserved Portion
The deceased’s freedom of disposition over their estate is not absolute. With a view to safeguarding the rights of the closest heirs to certain proportions of the estate, the legislator has provided for the institution of the reserved portion and has counted the surviving spouse among the heirs entitled to a reserved portion.
The proportion of the spouse’s reserved portion likewise differs according to the class of heirs with which they inherit. Pursuant to the provision in Article 506 of the Turkish Civil Code No. 4721, where the spouse inherits together with the descendants or with the second class, the whole of their statutory share benefits from the protection of the reserved portion. Conversely, where they inherit together with the third class or become entitled to the estate on their own, the protection is limited to 3/4 of the statutory share of inheritance.
Remedies Available Where the Reserved Portion Is Infringed
If the deceased’s dispositions upon death or the gratuitous transfers they made during their lifetime erode the spouse’s reserved portion, various avenues of action are available to remedy that infringement.
The remedy that first comes to mind in practice is the action for abatement. This action seeks to reduce transfers exceeding the reserved portion to the limit drawn by the statute and to make good the heir’s diminished share.
Depending on the nature of the particular case, other types of action may also arise: an action for annulment of title deed and registration based on an allegation of simulation by the deceased, an action for the annulment of a will, or an action for the annulment of a contract of inheritance are the principal ones.
The great majority of disputes arise from transfers of immovable property carried out by the deceased during their lifetime, from gifts, and from simulated transfers made with the aim of concealing assets.
The Link Between the Matrimonial Property Regime and the Share of Inheritance
The surviving spouse’s rights in relation to the estate are not confined to the statutory share of inheritance. Unless the spouses have agreed on another regime before a notary, the regime of participation in acquired property applies between them.
This regime affords the spouses a mutual participation claim over the assets obtained during the marital union. When the marriage ends by death, the surviving spouse first collects the participation claim arising from the matrimonial property regime; the share of inheritance is calculated only thereafter, on the estate that remains.
For this reason the matrimonial property regime between the spouses must have been liquidated before proceeding to the division. A frequent misconception in practice is the assumption that the surviving spouse holds only a share of inheritance. Yet where the immovables in the estate bear the character of acquired property, the amount of the participation claim may exceed the share of inheritance many times over.
The Scope of the Regime of Participation in Acquired Property
The Turkish Civil Code No. 4721, which entered into force on 1 January 2002, adopted the regime of participation in acquired property as the statutory matrimonial property regime between spouses. Unless the parties choose a different regime before a notary, this regime applies automatically.
The logic of the regime is as follows: the values obtained by the spouses during the marriage in return for their labour and work are as a rule accepted as acquired property. Property passing by way of inheritance, values acquired as a gift and items devoted to personal use, on the other hand, are regarded as personal property.
The statute has identified the values falling within the scope of the concept of acquired property in particular as follows:
- Returns arising from personal property: Rental income, interest income and similar economic gains provided by an asset regarded as a spouse’s personal property fall within this group.
- Values obtained in return for labour: Salary, wages, commercial profit and income arising from self-employed professional activity are in the nature of acquired property.
- Compensation paid on account of the loss of earning capacity: Items of pecuniary compensation paid to a spouse upon their loss of earning capacity are also assessed within this scope.
- Payments made by social security institutions and social assistance bodies: Retirement pensions, severance pay and payments in the nature of social assistance are regarded as acquired property.
- Substitute values: The consideration obtained as a result of the sale, transfer or conversion into another value of an item of acquired property likewise bears the same character.
When the marriage ends by death, the surviving spouse becomes entitled to a participation claim over the residual value of the acquired property. Accordingly, before proceeding to the division of the inheritance it is of decisive importance to distinguish accurately which element of the estate is acquired property and which is personal property.
Calculating the Participation Claim Before the Share of Inheritance
In marriages ending by death, the surviving spouse obtains a participation claim over one half of the residual value of the acquired property. For this right to arise, no regard is had to whether the spouse worked or whether they made a concrete contribution to the acquisition of the property.
The participation claim is accepted as one of the priority debts of the estate. For this reason the calculation is conducted in two stages: the claim is first determined and set aside for the surviving spouse, after which the statutory share of inheritance is found on the estate that remains.
By way of example, in a file involving an immovable acquired while the marriage subsisted, the surviving spouse first receives the participation claim as regards the part of the immovable corresponding to acquired property; the share of inheritance is then calculated separately on the value remaining after that distinction.
Rights of Claim over the Family Residence and Household Goods
The Turkish Civil Code No. 4721 has not confined itself to granting the surviving spouse a share alone; with a view to protecting the marital union it has also provided certain special possibilities. The provisions relating to the family residence and household goods are foremost among those aimed at enabling the spouse to maintain their shelter and the order of their life after the death.
Where certain conditions are met, the surviving spouse may request that the family residence and the household goods be allocated to them; depending on the situation this claim may be advanced in the form of the creation of a usufruct, a right of habitation or a right of ownership. During the division of the inheritance the family residence is one of the items that gives rise to the greatest contention in practice.
Allocation of the Family Residence
The family residence denotes the immovable in which the spouses lived together throughout the marriage and which forms the centre of family life. Article 240 of the Turkish Civil Code No. 4721 affords the surviving spouse the possibility of requesting allocation of that immovable so as to be able to maintain the order of their previous life. The claim may be directed at the creation of a right of habitation or a usufruct over the dwelling, and it may equally be advanced in the form of the transfer of ownership itself to the spouse.
In reaching its decision the court weighs together the state of the estate, the rights of the other heirs and the features of the particular case. Securing the surviving spouse’s need for shelter constitutes the centre of gravity of that assessment in practice.
Rights Relating to Household Goods
Certain special possibilities have also been afforded in favour of the surviving spouse as regards the household goods located in the common dwelling. The aim of these provisions is to enable the spouse to carry on their daily life without interruption after the death.
The court may rule, during the division, that the household goods be left to the surviving spouse. Where the goods in question are of a character devoted to personal use and serve a function in the continuation of common life in particular, the assessment may be made in the spouse’s favour.
The Place of the Family Residence in the Division
In most files the family residence is the highest-value element of the estate. For this reason the question of to whom the dwelling is to be left is the matter that most frequently gives rise to disputes in the division of the inheritance. In examining the spouse’s claims relating to this immovable the following elements are considered together: the result emerging from the liquidation of the matrimonial property regime, the amount of the spouse’s participation claim, the proportion of the statutory share of inheritance and the rights of the other heirs in the estate.
In files in which the dwelling bears the character of acquired property, the participation claim and the share of inheritance are addressed together and the division is made in accordance with that overall calculation.
The fact that the spouse makes a claim over the family residence or the household goods does not lead to the result that these will be left to them without consideration. Depending on the features of the case, the value of the dwelling is deducted from the spouse’s participation claim or from their share of inheritance; if the value exceeds the total of these rights, the difference may have to be paid to the other heirs.
The Surviving Spouse Faced with Equalisation and Restitution Claims
Gratuitous transfers made by the deceased during their lifetime to certain heirs are, where the conditions are met, made subject to equalisation. This institution, which aims to preserve the balance among the heirs, gains particular importance in the division among the descendants.
The surviving spouse also falls within the field of application of this institution. In some files they are the party advancing the claim for equalisation, while in others they face claims directed against them. High-value transfers of immovable property, gifts and transactions aimed at concealing assets are the principal source of disputes in this field.
Claims for equalisation and restitution do not in practice proceed on their own; they are assessed together with actions concerning simulation by the deceased, abatement and the division of the estate. On account of this interlocking character, the rights and obligations of the surviving spouse must be analysed carefully by reference to the particular case.
The Purpose of Equalisation
Equalisation is an institution of the law of inheritance which ensures that gratuitous transfers made by the deceased during their lifetime to some of their statutory heirs are brought back into the estate at the time of division, and that equality among the heirs is thereby restored. The purpose of the provisions on equalisation in the Turkish Civil Code No. 4721 is to make transfers made in favour of particular heirs visible in the calculation of the division.
The obligation arises most often as regards the descendants. Gifts made by the deceased to their children, immovables transferred into their names, resources provided to enable them to set up a business, or high-value cash support may, where the conditions are met, become the subject of equalisation.
Which Transfers Fall Within Equalisation
Not every transfer made by the deceased during their lifetime falls within the scope of equalisation. For a transfer to be counted within this scope, it must have been made on account of the share of inheritance or the deceased’s intention must have been to that effect. The transactions most often forming the subject of equalisation disputes in practice are the following: payments made with a view to discharging a debt, high-value gifts, transfers of immovable property carried out in the name of an heir, economic support directed at the setting up of a business, and transfers of money for which there is no consideration whatsoever.
Where the deceased has clearly established that they excluded the transfer from equalisation, it is accepted that the provisions on equalisation may not apply.
The Spouse’s Right to Request Equalisation
The surviving spouse may request, at the time of the division, the equalisation of transfers made to the other statutory heirs. Where certain values that ought to fall within the estate were transferred by the deceased during their lifetime to particular heirs, the spouse may, relying on the provisions on equalisation, request that the division be recalculated.
This possibility gains practical value in particular where the deceased has transferred immovable property to some of their children or has provided them with considerable economic support.
Equalisation Claims That May Be Directed at the Spouse
The surviving spouse may also be the party against whom a claim for equalisation is directed. Where it is alleged that high-value transfers made by the deceased to their spouse were made on account of the share of inheritance, the other heirs may make a claim for equalisation.
When faced with such an allegation, the legal character of the transfer made to the spouse must be determined: is the transfer in question a gift, or is it the performance of a right arising from the matrimonial property regime between the spouses? That distinction is assessed separately according to the facts of the particular case.
The Form of Restitution and the Method of Calculation
Where it is concluded that a transfer is subject to equalisation, the value concerned is restored to the estate and included in the calculation of the division. The concept of restitution here does not always mean the return of the property itself; in practice the result is most often reached by deducting the value of the transfer from the share of the heir concerned.
In making the calculation, the character of the transfer, the date on which it was carried out, its economic value and the deceased’s intention are taken into account together. In files involving a transfer of immovable property, an examination by a court-appointed expert becomes the decisive element of that assessment.
The Intersection with Simulation by the Deceased and Abatement
Equalisation disputes often proceed intertwined with actions concerning simulation by the deceased and abatement. Where it is alleged that transfers of immovable property made by the deceased in favour of certain heirs were sales in appearance but gifts in reality, the provisions on simulation by the deceased may also come into play.
If the transfers made erode the surviving spouse’s reserved portion, it is additionally possible to bring an action for abatement. For this reason claims for equalisation, abatement and simulation by the deceased are in practice addressed not independently of one another but in connection with one another.
The Course of the Proceedings and Procedural Matters
Disputes relating to the surviving spouse’s right of inheritance rarely arise on their own; they generally come up together with processes concerning the division of the inheritance, land registry transactions, infringements of the reserved portion, allegations of simulation by the deceased and the liquidation of the matrimonial property regime. For this reason correctly identifying the court with subject-matter jurisdiction, gathering the evidence in full and conducting the proceedings in accordance with procedure are decisive for the protection of rights.
Different types of action may be involved as regards the determination of the share of inheritance, claims over the family residence, transfers of immovable property and disputes relating to the estate.
Courts with Subject-Matter and Territorial Jurisdiction
Subject-matter and territorial jurisdiction are determined according to the nature of the action to be brought. As regards claims arising from the matrimonial property regime — the contribution claim, the claim for the increase in value and the participation claim — the court with subject-matter jurisdiction is the Family Court.
Conversely, as regards disputes over rights in rem relating to the estate, requests for the dissolution of joint ownership, actions for abatement, claims founded on simulation by the deceased and actions for annulment of title deed and registration, the court with subject-matter jurisdiction is the Civil Court of First Instance.
As regards territorial jurisdiction, a significant proportion of actions relating to inheritance are heard by the court of the deceased’s last place of domicile. In actions concerning rights in rem over an immovable, the exclusive territorial jurisdiction of the court of the place where the immovable is situated may arise.
Evidence and Proof
Foremost among the disputes faced by the surviving spouse are actions relating to the immovables included in the estate. Transfers of immovable property by the deceased during their lifetime, the division of the family residence, allegations of simulation by the deceased and requests for the dissolution of joint ownership make up the predominant part of this group.
Alongside these, various actions and requests for a declaratory finding may also arise in situations such as the estate being understated, certain assets being concealed or being registered in the names of third parties.
Whether the spouse can bring their claims under the law of inheritance to a successful conclusion depends on their establishing those claims by lawful evidence. Depending on the nature of the dispute, civil registry records and the certificate of inheritance, land registry and bank records, documents relating to transactions carried out before a notary, written documents and digital records, witness accounts and reports of court-appointed experts may be used as evidence.
In files concerning simulation by the deceased, abatement and the participation claim, the exercise of proof most often extends over a broad field. For this reason it is of great importance that the evidence be gathered in full and submitted to the file in accordance with procedure.
Court Fees and Litigation Costs
In actions to be brought in respect of the surviving spouse’s claims, the regime of fees and costs varies according to the type of action.
Proceedings for obtaining a certificate of inheritance are subject to a fixed fee. Conversely, in actions for annulment of title deed and registration, simulation by the deceased, abatement and the participation claim, a proportional fee may be applied on the basis of the value of the action. The items of litigation costs include the advance fee and the application fee, service costs, the fees for on-site examination and court-appointed experts, and the costs paid to witnesses.
At the end of the proceedings the unsuccessful party is as a rule held liable both for the litigation costs and for the attorney fee.
Attorney Fees
The attorney fee payable by the opposing party as awarded by the court is determined in favour of the successful party and collected from the party who was unsuccessful in the action. In disputes in which the subject matter of the action can be measured in money or in terms of the value of assets — as in actions concerning simulation by the deceased, annulment of title deed and registration, abatement and the participation claim — this fee is calculated proportionally.
The fee agreed in the attorneyship contract signed between a party and their lawyer is also most often determined proportionally on the value of the action. However, that contractual fee and the attorney fee payable by the opposing party as awarded by the court are legally distinct in character.
Appeal and Appeal on Points of Law
Decisions given in disputes arising from the law of inheritance are as a rule open to review by a higher court. In files concerning simulation by the deceased, annulment of title deed and registration, abatement, the participation claim and the estate, recourse may be had to the remedies of appeal and appeal on points of law.
- Appeal: An application must be made to the Regional Court of Appeal within 2 weeks of service of the first instance court’s decision.
- Appeal on points of law: An appeal on points of law may be brought before the Court of Cassation against decisions of the Regional Court of Appeal within 2 weeks of service. Whether that review may be carried out depends on the monetary threshold prescribed in the statute and on the other statutory conditions.
Note: In actions concerning rights in rem over an immovable, such as annulment of title deed and registration, no registration may be effected in the land registry until the appellate processes have been completed and the decision has become final, even if the court has given a decision.
Independent Legal Assessment
In files relating to the rights of the surviving spouse, the element that determines the outcome is most often the correctness of the legal characterisation. Where it is overlooked that the participation claim and the share of inheritance rest on separate legal foundations, the value the spouse is to receive from the estate is calculated significantly short. Likewise, a failure to advance claims relating to the family residence in good time and within the correct action may produce consequences that are difficult to remedy afterwards.
Since disputes in this field lie at the point where family law and the law of inheritance intersect, it may be necessary to conduct in a coordinated manner several actions falling within the remit of different courts. In planning the process it is appropriate to bring the following matters forward:
- Classifying the assets in the estate from the outset according to the distinction between acquired property and personal property
- Concluding the liquidation of the matrimonial property regime before the division of the inheritance and setting aside the liquidation claim as a debt of the estate
- Determining within which action the claims for allocation of the family residence and household goods are to be advanced
- Screening the transfers and gifts made by the deceased during their lifetime separately in terms of equalisation, abatement and simulation by the deceased
- Reflecting the rule on territorial jurisdiction and the requirement that the decision become final in the timetable of the process in claims relating to immovables
- Correctly determining the value of the action from the outset in claims giving rise to a proportional fee
Independent Legal provides advisory and litigation services throughout the entire process, from the liquidation of the matrimonial property regime to the division of the estate, in disputes at the intersection of family law and the law of inheritance.