ARE DONATIONS MADE WITHIN MARRIAGE SUBJECT TO EQUALIZATION?

Entrance

One of the most debated issues in inheritance law is whether donations made by the testator during their lifetime are subject to equalization. In particular, how donations made by one spouse to the other or to their children within a marriage should be evaluated in the distribution of inheritance is a source of serious disputes. Article 669 of the Turkish Civil Code regulates the equalization rule; however, it introduces provisions open to interpretation regarding the scope of donations. Therefore, whether donations made within marriage are subject to equalization is important for protecting the rights of heirs and maintaining family balance.

The Purpose of the Equalization Institution

• Equalizationensures that transfers made by the testator to their descendants during their lifetime are taken into account during the distribution of the inheritance.

• The primary aim equality among heirs .

• According to Article 669 of the Turkish Civil Code, "inter vivos transfers made by the testator to descendants are subject to equalization unless explicitly stated otherwise."

The Nature of Donations in Terms of Equalization

Donations are, as a rule, subject to equalization. However, whether every donation has the same value in terms of inheritance law is debatable.

• Customary (ordinary) gifts → Not subject to equalization.

• Donations of significant value are subject to equalization.

• Education and marriage expenses → If they exceed the usual limits, they are subject to equalization.

Characteristics of Donations Made Within Marriage

1. Donations Made to a Spouse

• Whether donations made to one spouse are subject to equalization is debatable.

• In the Turkish Civil Code system, equalization transfers made to descendants .

• Therefore, donations made to a spouse are not directly subject to equalization.

• However, if this donation creates inequality among the heirs to such an extent that it violates the reserved share, to a reduction lawsuit .

2. Donations to Children

• Donations made by the testator to their children are generally subject to equalization.

• Transactions such as the transfer of real estate, large-scale cash donations, or transfer of company shares by a parent to their child within a marriage are considered within the scope of equalization.

• However, jewelry or reasonable contributions given to children as wedding gifts are considered customary gifts and are not included in the equalization calculation.

3. Donations from Joint Assets

• In donations made from assets acquired within a marriage, the source of the donation is important.

• If the donation is made from the spouses' joint assets, the consent and contribution of the other spouse are taken into consideration.

• These types of donations are generally considered as equalization.

The Testator's Will

According to the Turkish Civil Code, a testator may explicitly declare that a donation is exempt from equalization.

• For example, if a will states "the donation I make to my son is exempt from equalization," then that donation will not be subject to equalization.

• However, the intention to grant the exemption must be clear, unambiguous, and without hesitation.

Problems Encountered in Practice

1. The distinction between customary gifts and significant donations → Disputes arise, especially regarding the increasing value of gold and jewelry given at weddings.

2. The status of donations made to a spouse → This leads to disputes as there is no explicit provision in the Turkish Civil Code.

3. The ambiguity of the exemption statement → It raises debate as to whether the testator's oral statements are sufficient.

4. The source of the donation → Whether the donation comes from personal property or acquired property will yield different results in the calculations.

Examples of Donations Not Subject to Equalization

• Ensuring that the child's school expenses are met in a reasonable manner.

• Jewelry given at a wedding (provided it does not exceed the usual amount).

• Gifts given on special occasions such as birthdays and graduations.

Examples of Donations Subject to Equalization

• The testator transferring an apartment or land to one of their children.

• Large amounts of cash or bank transfers.

• Transfer of shares in the joint company to only one of the children.

• Incurring extraordinary wedding expenses.

Conclusion

Whether gifts made within a marriage are subject to equalization who the gift was given to, its value, its source , and the testator's intention .

• Donations made to a spouse are generally not subject to equalization, but reduction may occur if there is a violation of the reserved share.

• Donations to children are generally subject to offsetting.

• Customary gifts are exempt from equalization.

Ultimately, the institution of equalization in inheritance aims to ensure a sense of justice within the family and equality among heirs. In the case of gifts made within marriage, careful consideration of the nature of the gift and the testator's intention is necessary to maintain this balance.