Reserved Share in Inheritance Law

Turkish inheritance law strikes a delicate balance between the testator's "freedom of testation," a right to property, and the principle of "family solidarity," which safeguards the economic future of family members. The most concrete manifestation of this balance of the Reserved Portion . The reserved portion is an economic asset "reserved" by the legislator for heirs within a certain degree of kinship, an asset that even the testator's will cannot alter.

1.1. The Concept of Reserved Share and the Balance Between "Disposable Portion"

Upon the death of a testator, all of their assets (estate) are, as a rule, transferred to their legal heirs. However, the testator can alter this transfer through donations made during their lifetime or through dispositions dependent on their death (will, inheritance agreement). At this point, the law divides the estate into two parts to protect the rights of the heirs: the Reserved Portionand the Disposable Portion.

The testator can only act as they wish with the disposable portion of the inheritance. If they exceed this limit and interfere with the rights of an heir entitled to a reserved share, the transaction does not automatically become invalid; however, it becomes the subject of a lawsuit called "reduction," which ensures the return of the share. This shows that the reserved share a relative level of protection .

1.2. Heirs Entitled to a Reserved Share: Who Benefits from This Protection?

According to Article 505 of the Turkish Civil Code (TMK), the right to a reserved share is not granted to every heir. The legislator has only included the closest family circle within the scope of this protection.

Descendants (Children, Grandchildren, and Their Children): This is the most strongly protected group in inheritance law. Regardless of degree of kinship, everyone descended from the deceased has this right.
Parents: If the deceased has no descendants, their parents, who are their ascendants, are entitled to a reserved share.
Surviving Spouse: The spouse's reserved share is one of the most complex rights to protect, varying depending on which group of heirs they inherit with.

A Significant Historical Turning Point: The Status of Siblings Under the old Civil Code, siblings also had a reserved share of the inheritance. However, the 2007 amendment abolished this right. This expanded the testator's freedom of disposition, allowing individuals to leave their inheritance to a foundation or a third party of their choosing, instead of giving a share to their siblings.

1.3. Mathematical Analysis of Reserved Share Ratios

The reserved share is a specific percentage of an heir's legal inheritance share. These percentages are fixed by the legislator according to the degree of kinship to the heir as follows:

For descendants: Half (1/2) of the legal inheritance share . For example, if the only child is the heir and their legal share is the entire inheritance (1/1), their reserved share is half of that, which is 1/2.
For the Mother and Father: One-fourth (1/4) of the legal inheritance share .
For the Surviving Spouse:
- If he/she is an heir together with a descendant or parent, the entire legal inheritance share (1/1).
- In other cases (for example, if with grandparents or their children), three-quarters (3/4).

1.4. The Economic Equivalent of the Reserved Share: Estate or Net Assets?

The biggest misconception in calculating the reserved share is looking only at the deceased's bank account or property records. For an academic-level calculation, Net Estate .

When calculating the net estate, the deceased's assets at the time of death are added to any donations made during their lifetime that are legally subject to reduction (made with the intention of prejudice to the reserved share). From this total, the deceased's debts, funeral expenses, and estate sealing/inventory costs are deducted. The resulting figure is the "mathematical value" upon which the reserved share will be taken

1.5. Inviolability of Reserved Shares and Public Order

The reserved share is not only an individual right but also an institution concerning public order. Therefore, even if an heir unilaterally declares, "I waive my reserved share," while the testator is still alive, this declaration is legally invalid unless it is made in the form of a formal Inheritance Renunciation Agreement . The law thus protects the heir against potential pressure from the testator.

Protection of Reserved Share and Reduction of Share Claim

A reduction lawsuit is a constitutive lawsuit that aims to bring the interference with the rights of heirs entitled to reserved shares back within legal limits when the testator has exceeded the limits of the disposable portion of the inheritance . The main purpose of this lawsuit is to respect the testator's will while establishing the mandatory rules of reserved shares stipulated by law.

2.1. Subject of the Reduction Lawsuit: Which Dispositions are Subject to Reduction?

Not every transaction of the testator is subject to reduction. For a reduction lawsuit to be filed, there must first be a "violation of the reserved share". Transactions subject to reduction are divided into two main groups:

Testamentary Dispositions: These are transactions made by the testator through a will or inheritance agreement that take effect after their death. These dispositions are subject to reduction without any conditions, to the extent that they impair the reserved share of the inheritance.
Inter vivos transfers: These are gratuitous transfers (donations) made by the testator during their lifetime. However, not every inter vivos donation is subject to reduction; according to Article 565 of the Turkish Civil Code, only certain types of donations (for example, donations made to those who have lost their status as heirs, those made with the intention of harming inheritance rights, or those made with the condition of retention of ownership) fall within this scope.

2.2. Plaintiff and Defendant Status: Active and Passive Adjudication

The right to file a reduction lawsuit belongs only to heirs whose reserved share has been infringed upon . Even the creditors of an heir cannot file this lawsuit unless certain conditions are met (such as the heir's bankruptcy or the issuance of a certificate of insolvency).

The defendant in the case is the person to whom the testator made a transfer infringing upon their reserved share. This person could be another heir, a third party who is not an heir, or a foundation/association. According to the Supreme Court's practice, there is no "mandatory joinder of parties" in a reduction of inheritance share lawsuit; each heir whose reserved share has been violated can file an independent lawsuit for their own right.

2.3. "Fixed Reduction Rate" and Ranking in Reduction Calculations

The most complex stage in a reduction of inheritance shares case is the calculation stage. First, the court determines the net value of the estate (Net Estate, as discussed in Section 1). Then, the reserved shares are calculated. If the total of the reserved shares exceeds the disposable portion, the reduction process is carried out in the following order:

Priority: First, testamentary dispositions (wills) are reduced. If these are insufficient;
Secondly: Inter vivos donations are reduced from newest to oldest (chronological order).

2.4. Statutory Limitations: The Legal Effect of Time

A reduction of inheritance share lawsuit cannot be filed for an indefinite period. The legislator has prescribed short time limits to ensure legal certainty regarding the transfer of inheritance (Turkish Civil Code, Article 571):

Subjective Time Limit: One year from the date the heirs learn that their reserved shares have been infringed upon .
Objective Time Limit: In any case, 10 years. These periods are not statutes of limitations, but "preclusive" periods; that is, they are taken into account ex officio (automatically) by the court.

2.5. The Fixed Reduction Rate and the Issue of Monetary Refund

In a reduction of inheritance share lawsuit, the rule is not the return of the property in kind, but the cash restitution of its value. If the property to be reduced (for example, an apartment) is not divisible, the defendant is given a choice under Article 564 of the Turkish Civil Code: either to return the property and receive the excess in cash, or to retain ownership of the property and pay the plaintiff in cash the amount that infringes upon their reserved share. The value of the property as of the date closest to the date of the decision is used as the basis for this calculation.

2.6. Supreme Court Case Law and Burden of Proof

In reduction of inheritance shares cases, the burden of proof rests with the plaintiff. The plaintiff must prove both the current existence of the estate and the donations subject to reduction made by the testator during their lifetime. In particular, the "intent to violate the reserved share" (animus donandi) plays a key role in the reduction of inter vivos donations. The Supreme Court considers the testator's financial situation, family relationships, and the magnitude of the donation as presumptive evidence in determining this intent.

A Comparison of Fraudulent Transfers by the Deceased and Reduction of Shares Claims

In practice, heirs often hesitate about which type of lawsuit to file regarding the transfer of real estate. However, these two types of lawsuits are subject to completely different legal regimes in terms of their legal basis, time limits, methods of proof, and outcomes.

3.1. Fraudulent Transaction by the Deceased: Invalidity of the Apparent Transaction

Fraudulent transfer of property by the testator is a transaction that does not conform to the testator's true intention, carried out with the aim of depriving an heir of their inheritance rights. Typically, the testator will register a property they actually intended to donate as a "sale" or a "contract for care until death" in the land registry.

Legal Nature: This is not a case of "defect of will," but rather a "deliberately created discrepancy between will and declaration."
Conclusion: The transaction, due to collusion, absolutely void. That is, the transaction is invalid from the outset. Therefore, the lawsuit filed is not a "compensation" lawsuit, but for the cancellation and registration of the title deed .

3.2. Key Differences from Reduction Action

Summarizing the differences between a reduction lawsuit and an annulment lawsuit based on collusion in the following table is essential for understanding the issue:

3.3. The Competition of Rights and the “Alternative” Lawsuit Strategy

According to Supreme Court precedents, an heir can, in the same petition, request "annulment primarily due to collusion, and if this is not accepted, reduction of the inheritance share." This a conditional (gradual) lawsuit .

If the transaction made by the testator was genuinely a sale and the price was paid, neither an annulment nor a reduction decision can be made. However, if the transaction was a "hidden donation" and collusion can be proven, the entire immovable property returns to the estate. If collusion cannot be proven, but it is understood that the transaction infringed upon the reserved share, then the provisions for reduction are applied, and the heir's share is compensated in cash.

3.4. The Aesthetics of Proof: Presumptions of Collusion

Proving collusion is difficult because it means revealing a hidden intention. To overcome this difficulty, the Supreme Court has developed certain presumptions (indicators):

Underprice: A significant difference between the sale price stated in the title deed and the actual value of the property.
Family Circumstances: The deceased's strained relationship with other heirs or excessive closeness to the person to whom they transferred their inheritance.
Economic Situation: The testator has no need to sell the property, or the buyer lacks the financial means to purchase it.
Traditional Structure: Regional or societal tendencies, particularly regarding the withholding of property from daughters and its transfer to sons.

3.5. Legal Consequences: Refund or Compensation?

When a lawsuit concerning collusion is won, the court cancels the title deed and orders the registration of the property in the names of the heirs in proportion to their inheritance shares. This is a real right. In a reduction lawsuit, however, the property usually remains with the defendant, but the defendant pays the equivalent of the reserved share in cash at the current market value. This distinction is the most important factor determining the outcome of the case, especially in an economic climate where real estate prices are rapidly increasing.

3.6. The Status of Third Parties and the Protection of Good Faith

If the person who acquired the property fraudulently sold it to a third party in good faith before the lawsuit, the ownership of that third party is protected under Article 1023 of the Turkish Civil Code. In this case, the heir cannot reclaim the property; however, they can claim compensation from the heir who absconded with the property for its value. In a reduction lawsuit, since the target is not ownership but monetary value, the possibility of making claims against third parties is much more limited.

Disinheritance (Exclusion) and Cases Where Reserved Shares Are Lost

Disinheritance is the act of a testator, through a unilateral testamentary disposition (will), depriving a protected heir of their inheritance rights and, consequently, their reserved share, either wholly or partially. This act is the most severe sanction in inheritance law.

4.1. Types of Disinheritance: Penal and Protective Disinheritance

The Turkish Civil Code regulates the process of deletion for two different purposes:

Criminal Exclusion (Turkish Civil Code Article 510): This type of exclusion is based on the heir's culpable conduct.
Protective Transfer (Turkish Civil Code Article 513): This is the transfer of an heir's inheritance share to their own children (the testator's grandchildren) for protection purposes, in cases where the heir is insolvent. The aim here is not to punish the heir, but to prevent the assets from falling into the hands of creditors.

4.2. Grounds for Penal Exclusion: Under What Circumstances is the Reserved Share Lost?

In order for the testator to deprive an heir of their reserved share, at least one of the following two conditions must be met:

Committing a Serious Crime: The heir must have committed a serious crime against the testator or one of the testator's close relatives . Whether the crime is "serious" is determined by the judge; however, it is generally accepted that the crime must be of a nature that would sever family ties (attempted murder, grievous bodily harm, serious assault on dignity, etc.).
Violation of Family Law Obligations: This refers to the heir's significant failure to fulfill their obligations arising from family law towards the testator or family members . For example, neglecting a parent in need of care, abandoning them, or failing to provide care during a serious illness falls under this category. The Supreme Court emphasizes that this violation must be "continuous and serious."

4.3. Formal Requirements for Abortion and the Obligation to "State the Reason"

The most critical point in the disinheritance process is that the reason for disinheritance must be clearly stated in the will.If the testator simply says, "I disinherit my son Ahmet," the process is invalid. For the disinheritance to be valid, the events (date, place, action) on which the reason is based must be concretely specified.

Burden of Proof: If the disqualified heir objects to this decision and files a lawsuit, the burden of proving that the disqualification was justified and that the reason given is correct to the other heirs who benefited from the disqualification . If the reason cannot be proven, the heir will receive their reserved share in any case.

4.4. Legal Consequences of Disinheritance

A person disinherited not only loses their share of the inheritance but also their right to file a claim for reduction of the inheritance share.

The Fate of the Inheritance Share: The inheritance share of the excluded person passes to their descendants , if any, as if they had died before the testator . If there are no descendants, it is distributed among the other legal heirs.
Alimony and Support: The excluded heir cannot claim any rights from the deceased; however, this does not affect their other legal rights (e.g., social security rights).

4.5. Protective Removal (Dismissal due to Insolvency)

According to Article 513 of the Turkish Civil Code, an heir who has been declared insolvent may be disinherited for half of their reserved share. However, this share must be left to the disinherited heir's children, both born and yet to be born . This ensures that the assets remain within the family and are protected from direct interference by creditors.

4.6. Amnesty Mechanism

If the testator, after excluding an heir, forgives that heir during their lifetime, the exclusion automatically becomes null and void. Forgiveness can be expressed explicitly or implicitly through the testator's actions demonstrating the re-establishment of family ties with the heir. The forgiven heir regains all their reserved inheritance rights.

Calculating the Reserved Share: Net Estate, Fixed Ratios, and Case Analyses

The process of calculating the reserved share is the most critical stage in determining whether a lawsuit will be won or lost. This calculation is carried out through a three-step algorithm: netting the deceased's assets, determining the legal shares, and finally applying the reserved share ratios to these shares.

5.1. Basis of Calculation: Net Estate (Real Value)

The value upon which the reserved share is calculated is not limited to the deceased's active assets at the time of death. Academic and legal calculations the "Net Estate" as the basis.

Assets: Movable and immovable property at the time of death, bank accounts, receivables, and donations made during lifetime that are subject to reduction (transfers that can be reclaimed pursuant to Article 565 of the Turkish Civil Code).
Liabilities (Deductible Debts): The deceased's personal debts, funeral expenses, expenses for sealing and inventorying the estate, and three months' living expenses for those living with the deceased.
Formula:
(Assets + Donations Subject to Reduction) - Liabilities = Net Estate

5.2. The Surviving Spouse's Usufruct Right and Reserved Share Relationship

The right granted to the surviving spouse under the old Civil Code to "choose usufruct (right of use) instead of ownership" has evolved into a different dimension in modern inheritance law regarding the calculation of reserved shares.

Today, a spouse has a reserved share of the entire legal inheritance. However, if the testator, in their will, bequeathed to the spouse only the right of use (usufruct) of the property, rather than ownership, whether this infringes upon the spouse's reserved share is determined through a technical calculation.
If the actuarial value of the usufruct right (the financial value calculated based on the spouse's life expectancy) is less than the spouse's reserved share, the spouse can file a reduction lawsuit for the difference.

5.3. Fate of the Reserved Share in Case of Renunciation of Inheritance

Renunciation of inheritance is a declaration of intent that directly affects the calculation of reserved shares.

Rule: An heir who renounces their inheritance is considered as if they had died before the testator.
Reserved Share Effect: The reserved share of a person who renounces their inheritance does not "become free." This share is not added to the disposable portion of the deceased's estate. The share of the person who renounced the inheritance passes to their descendants (children), and the protection of the reserved share continues through these descendants. If the person who renounced the inheritance has no descendants, the share is distributed to the other heirs, and the calculation is redone based on the new shares.

5.4. Concrete Case Analyses (Mathematical Application)

The following cases are mathematical analyses of the most common scenarios in legal doctrine:

Case 1: Spouse and Children's Cohabitation

Heirs: Surviving spouse (E) and 2 children (C1, C2).
Net Estate: 1,200,000 TL.
Legal Share Distribution: Spouse's share 1/4 (300,000 TL), Children's share totaling 3/4 (450,000 TL per person).
Reserved Share Calculation:
- Spouse: The entire legal share is reserved (1/1) = 300,000 TL.
- Children: Half of their legal share (1/2) = 225,000 TL per person
Conclusion: The testator is obligated to preserve a reserved share of 750,000 TL in this estate. The remaining 450,000 TL can be freely disposed of.

Case 2: Childless Deceased and Parents

Heirs: Surviving spouse (E) and the deceased's mother (A) and father (B).
Net Estate: 1,000,000 TL.
Legal Share Distribution: Spouse's share is 1/2 (500,000 TL), Mother and Father's share is 1/2 in total (250,000 TL per person).
Reserved Share Calculation:
- Spouse: Entire legal share (1/1) = 500,000 TL.
- Mother and Father: One-fourth (1/4) of their legal share = 62,500 TL per person
Result: The total reserved shares amount to 625,000 TL. The disposable portion is 375,000 TL.

The Role of Fixed Ratios in Fair Distribution

The fixed nature of reserved share ratios ensures predictability in inheritance law. However, these ratios become complex when combined with the unique dynamics of each case (for example, allegations of fraudulent transactions by the deceased). The most important principle of the Supreme Court, which prevents loss of rights in inflationary environments, is that calculations should be based not on the value of the immovable property at the time of death , but on its value closest to the date of the decision in a reduction lawsuit .

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Reserved Share in Inheritance Law