Agreement to Relinquish Inheritance

A testator may enter into a contract with an heir to waive their inheritance, either gratuitously or for consideration (Turkish Civil Code 528/1). A waiver of inheritance contract is one of the testamentary dispositions that can only be made through an inheritance agreement. As a negative inheritance contract, a waiver of inheritance contract relates to the heir's relinquishment of their future inheritance rights.

A waiver of inheritance agreement is generally made between the testator and heirs with reserved shares. This is because a waiver agreement between the testator and heirs with reserved shares expands the limits of the testator's ability to dispose of their property. At the same time, the heir with a reserved share may choose to waive their inheritance in exchange for a specific consideration, preferring the benefit of the agreement over the inheritance itself. In practice, it is more often done by the testator to prevent the fragmentation of a commercial enterprise by leaving it to multiple heirs, while the heir aims for economic independence through the consideration received as a result of the agreement.

A waiver of inheritance agreement may relate to a specific portion of the inheritance share or to the entirety of it. However, if the waiver raises doubts about the inheritance share, Article 528/2 of the Turkish Civil Code is invoked. According to this article, the person waiving their inheritance loses their status as an heir. Therefore, if the waiver agreement is questionable, it is assumed that the person waiving their inheritance has relinquished their entire share, based on the legal provision stating that the person waiving their inheritance loses their status as an heir.

Types of Inheritance Renunciation Agreements

Full Waiver Agreement – ​​Partial Waiver Agreement

If a complete waiver agreement is made, the heir relinquishes their entire future inheritance share. Therefore, the heir's status as an heir also ends.

In the case of a partial waiver agreement, the heir partially, but not completely, waives their future inheritance share. In this situation, it cannot be said that the heir's status as an heir has ended. However, we can say that there will be a reduction in the heir's future inheritance share.

Waiver Agreement with Consideration – Waiver Agreement without Consideration

Whether a renunciation of inheritance agreement is for consideration or not is actually important from the perspective of the descendants of the person renouncing it. This is because, if an heir renounces their inheritance, they lose their status as an heir, and this can, in some cases, have consequences for their descendants as well.

In a gratuitous waiver agreement, the heir relinquishes their inheritance share, either wholly or partially, without any consideration. If they waive their entire inheritance share without any compensation, they will also lose their status as an heir. However, this will only affect their own heirship, and the waiver will only have legal effect on the person waiving it. The descendants of the person waiving the inheritance will not be affected and will continue to inherit from the deceased.

The situation is different with regard to relinquishment agreements for consideration. The heir, in exchange for a consideration, completely or partially waives their future inheritance share. Again, if the heir waives their entire inheritance share for consideration, they will lose their status as an heir. However, this situation will not only affect them but also their descendants' inheritance rights. According to Article 528/3 of the Turkish Civil Code, relinquishment of inheritance for consideration will also have consequences for the descendants of the person relinquishing the inheritance, unless otherwise stipulated in the agreement. In this case, if the relinquishment agreement for consideration does not contain a clause regarding the inheritance rights of the descendants, the consequences that would apply to the person relinquishing the inheritance will also apply to their descendants.

A contract of renunciation for consideration is made in exchange for a price, and this price must be given by the testator to the heir who is waiving the inheritance. This obligation, which must be fulfilled by the testator, is the testator's debt to the heir arising from the contract. If this obligation is not fulfilled by the testator, the heir may withdraw from the contract of renunciation. To understand how this withdrawal occurs, one must refer to Article 547 of the Turkish Civil Code. According to this article, the party entitled to demand inter vivos performances under the inheritance contract may withdraw from the contract in accordance with the rules of contract law if these performances are not fulfilled in accordance with the contract or are not secured.

Waiver of Rights of the Deceased's Creditors

If, at the time of the opening of the inheritance, the estate is insufficient to cover its debts and the debts are not paid by the heirs, the person who renounced their inheritance and their heirs are liable to the creditors for the amount of the consideration they received from the testator within five years of their death for the waiver, up to the extent of their enrichment at the time of the opening of the inheritance (Turkish Civil Code Article 530).

This provision is important in cases where the testator's reciprocal waivers harm the rights of creditors, heirs entitled to a reserved share, or the creditors of heirs. With this provision, the legislator has provided protection for the rights of creditors and heirs entitled to a reserved share.

The amounts stipulated in a relinquishment agreement fall under the category of transfers subject to reduction. Reserved heirs or their creditors can file a reduction lawsuit, requesting a reduction from the relinquishment amounts to the extent that their reserved share has been harmed.

Invalidity of Waiver

If the waiver agreement is deemed invalid, the person who waived their heirship regains their status. The invalidity of the waiver agreement may relate to general provisions or to Article 529 of the Turkish Civil Code.

Whether a waiver agreement is subject to general provisions is important in determining its validity. If the agreement contains any formal irregularities, lack of capacity, illegality, immorality, or defects of will, it may be annulled. If the agreement is annulled based on these grounds, the person who waived their inheritance will regain their status as heir.

The invalidity of the waiver agreement should also be examined according to Article 529 of the Turkish Civil Code.

If the waiver agreement is made in favor of a specific person or persons;

If a waiver of inheritance agreement is made in favor of a specific person, and that person, for any reason, becomes ineligible to be an heir, the waiver becomes null and void (Turkish Civil Code 529/1). In this case, the person who waived their inheritance regains their status as an heir.

Unless the waiver agreement was made in favor of a specific person or persons;

If the agreement to renounce inheritance is not made in favor of a specific person, it is deemed to be made in favor of the descendants of the closest common ancestor, and if these descendants cannot become heirs for any reason, the renunciation becomes null and void (Turkish Civil Code 529/2). In this case, the person who renounced their inheritance regains their status as an heir.[1]

[1] Rona SEZORAN, Baki İlkay ENGİN, Inheritance Law, Seçkin Publications, 7th Edition, Ankara, 2021.

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