Presumption of Absence and Death

Short Summary

Presumption of absence and presumption of death are two separate legal institutions established by the legal system to safeguard inheritance and family relations in cases where proving death is difficult. The presumption of death is a legal principle that states a person is considered dead even if their body cannot be found, in situations where there is a strong possibility of death, such as disappearance under circumstances involving a risk of death. Presumption of absence, on the other hand, is the status of a person deemed "highly likely to be dead," determined by a court decision after specific waiting and announcement procedures. Both institutions have significant consequences in areas such as the timing of inheritance proceedings, certificates of inheritance, administration of estates, security and restitution, marriage and property regimes, company shares, social security, and insurance rights.

1) Concepts and Distinctions: Presumption of Death – Presumption of Simultaneous Death – Absence

The presumption of deathis a legal principle that comes into play when a person has disappeared under circumstances involving a risk of death, and their body has not been found, making death highly probable according to the ordinary course of life. This presumption has legal consequences in the fields of inheritance law, family law, and contract law.

The presumption of simultaneous deathis the principle that if it cannot be proven which of the individuals who died in the same incident died first and which died later, they cannot inherit from each other. If spouses, parents and children, or individuals related in the order of inheritance die in the same accident, the inheritance flows to different branches.

Declaration of absence ( gaiplik ) is the process by which a person is deemed "nearly dead" after a court ruling, following a specific waiting period, if they have disappeared without a trace for an extended period or under circumstances that pose a risk of death . This declaration requires a court order and announcement procedure; ultimately, it leads to the opening of the inheritance, the delivery of the estate, and in most cases, the provision of security (guarantee).

Key distinctions:

• Presumption of death is a legal presumption ; disappearance is a status requiring a court decision

• The presumption of death often allows for the inheritance to be opened as of the date of the event . In cases of absence, the court makes a decision after a period of announcement and waiting

• Requiring security for the delivery of inheritance in cases of absence is a systematic guarantee; in presumption of death, the application is shaped according to the circumstances of the case.

• The presumption of simultaneous death alters the direction of inheritance; it results in consequences such as spouses being unable to inherit from each other.

2) Legal Basis and General Principles

• The Turkish Civil Code (TMK)contains fundamental regulations regarding the termination of legal personality, presumption of death, presumption of simultaneous death, disappearance, and the opening of inheritance.

• The Population Services Law and related regulations: These regulate the processes for recording and registering death and disappearance decrees in the population register.

• Code of Civil Procedure (HMK): The provisions regarding the non-contentious nature of claims for absence, the competent and authorized court, announcement, proof, and notification apply.

• Notary Law: This is important regarding the conditions for issuing inheritance certificates (probate certificates) by notaries. In cases requiring population registration, such as presumption of absence/death, the notary often seeks a court decision.

• The Enforcement and Bankruptcy Lawmay come into play regarding the debts of the absent person and the protection of creditors (enforcement proceedings against the estate).

• Tax legislation: This determines the financial aspects of inheritance transfers, primarily including inheritance and transfer tax.

General principles:

• Proof of death is required in most legal proceedings. If there is no body, the burden of proof can be met with different types of evidence.

• an unregistered death or a lack of registration , it may be impossible to obtain a certificate of inheritance from a notary; in this case, one can resort to methods such as requesting a certificate of inheritance from the Civil Court of Peace or obtaining a declaration of absence from the Civil Court of First Instance.

• public trust and the protection of third parties justify the security and announcement procedures.

3) Presumption of Death: Conditions, Proof, and Application

3.1. Terms and Conditions

• Disappearance in a life-threatening situation (e.g., plane crash, shipwreck, earthquake, fire, war, flood, being trapped under rubble).

• The body could not be found , or the remains could not be identified.

• No reliable evidence that the person survived the incident or its aftermath.

3.2. Proof and evidence

• Incident reports, law enforcement reports, AFAD/UMKE records, witness statements, medical/forensic data, video recordings, company reports (e.g., air/sea transport).

• Documents obtained from official authorities (prosecutor's office, local administration).

• Negative evidence that the person has not been in contact in any way since the incident (lack of bank statements, social security records, mobile phone records, passport entry and exit records, etc.).

3.3. Application and results

• The presumption of death, a legal presumption, produces the consequences of death; the opening (and distribution) of the inheritance becomes possible.

• However, in practice , since registration or court decisions are required for matters such as real estate transfer, access to bank accounts, insurance claims, and social security transactions , most cases also involve a procedure for declaring a person missing or correcting population records .

• The date on which the inheritance opens is generally the date the event occurred , and limitation periods and forfeiture periods are calculated accordingly (reduction of inheritance shares, reserved shares, periods for revocation of wills, etc.).

4) Presumption of Simultaneous Death and its Effects on Inheritance Law

4.1. Content of the presumption

In cases where it cannot be proven which of the individuals who died in the same event died first or later , these individuals are not considered heirs to each other . This arrangement ensures that the estate is distributed within each heir's own group

4.2. Application examples

• The spouses died in the same accident, and the order of death could not be proven: The spouses cannot inherit from each other; the estate of each spouse goes to their descendants, or if they have none, to their ascendants/collateral relatives.

• mother and child die in the same event, and the order of kinship cannot be proven, the child does not inherit from the mother, nor does the mother inherit from the child; the estate is transferred to both parties according to their respective group order.

• inheritance agreements and wills ; if the order of priority cannot be proven, dispositions providing for the transfer of inheritance based on the order of death may be ineffective.

4.3. Practical results

• Estate calculations differ; for example, when liquidating the marital property regime of spouses, each spouse is considered as a separate heir.

• The distinction between beneficiary and heir in insurance compensation can be re-established.

• reduction of inheritance shares and reserved shares , the size of the estate and the rightful heirs may change.

5) Declaration of Absence: Conditions, Waiting Periods, Announcement and Trial Procedure

5.1. Conditions for Absence (summary)

• Disappearance in life-threatening situations (e.g., disaster, war, serious accidents) or

• Missing for a long time (lack of serious indications that the person is alive).

• Expiration of the waiting periods stipulated by law.

• the announcement procedure and by the court .

Waiting times (general framework in practice):

• In cases of life-threatening danger : At least one year must have passed since the date of the incident .

• In cases of prolonged absence : At least five years must have passed since the last known contact

Note: The court determines the notice and waiting period according to the case; in practice, it is essential to provide a waiting window of at least six months for notice periods

5.2. Competent and authorized court

• Competent court: In practice, the Civil Court of First Instance.

• Jurisdiction: The court of the missing person's last place of residence ; if this cannot be determined, the court of the place where the person's population registration is located or the court of the place where the interest relationship is concentrated may be considered.

5.3. Parties and eligibility to apply

• Heirs, spouse, creditors, the public prosecutor's office , or relevant public institutions can apply.

• The application is a non-contentious judicial review ; however, if a conflict of interest arises in the specific case, a hearing will be held.

5.4. Announcements and evidence

• The court announces the disappearance of a person so that those with information about the missing person may report it ; this announcement may be made in local newspapers, national newspapers, electronic announcement portals, or through other channels deemed appropriate by the court.

• Evidence: Law enforcement/prosecution records, witnesses, bank/mobile phone/passport transactions, social security records, workplace/residence investigations, disaster/incident reports.

5.5. Decision and conclusion

• Once the required time and announcement procedures are completed, a declaration of absence is issued.

• The decision in the population register ; the opening of the inheritance, the delivery of the estate, and the securing of guarantees come into question as a result of the declaration of absence.

6) Opening of the Inheritance, Certificate of Succession, and Administration of the Estate

6.1. Time and place of opening of the inheritance

• Presumption of death: The inheritance on the date the event occurred .

• Declaration of Absence: The consequences of opening the inheritance become effective with the declaration of absence; in practice, forfeiture/statute of limitations periods are calculated by accepting the "date of death" determined by the court.

• Location: Inheritance is, as a rule, at the place of residence ; lex rei sitae is also important with regard to immovable property (see element of foreignness).

6.2. Certificate of inheritance (probate certificate)

• Notariescan issue inheritance certificates if the population registry records are sufficient.

• In most cases involving unregistered or registered circumstances , such as presumption of death or disappearance, a certificate of inheritance must be obtained from the Civil Court of Peace .

• presumption of simultaneous death , the scope of the inheritance certificate and the order of inheritance are determined according to this presumption.

6.3. Management and protection of the estate

• When an inheritance is opened, the Civil Court of Peace or the estate representative (guardian) mechanisms may be activated for the identification and protection of the estate

• In cases of disappearance, the delivery of the estate to the heirs against security is essential (details below).

7) Security (Guarantee), Delivery and Refund in Case of Return of Absent Person

7.1. The rationale behind the guarantee

Absence creates a status "almost as dead"; a safeguard mechanism is provided to prevent the complete exhaustion of the inheritance, in accordance with the precautionary principle . Thus, if the absent person returns or is found to be alive , the elements of the estate can be returned.

7.2. Scope and duration of the guarantee

• The court appropriate security .

• In practice, the insurance period is determined according to the type of event and the specific risk of the case; it is common practice to extend the period in cases of prolonged absence and to be more flexible in cases of life-threatening situations

• Security cash, a bank guarantee letter , or a mortgage .

7.3. The return of the missing person or confirmation that they are alive

• If the missing person returns or is proven to be alive:

  • The return of assets delivered to heirs can be requested; the security deposit serves this purpose.

  • The good faith of the heirs and the gains of third parties are protected; restitution is shaped according to the principle of returning what is possible and compensation .

  • The security deposit resolutionwill be evaluated after the return processes are completed.

8) Marriage and Property Regimes – Family Home – Population and Marriage Registry

8.1. Presumption of death and marriage

• The presumption of death applies to marriage death were the sole legal consequence . However, the population registry and family register are required for official procedures.

• For spouses seeking widow's pensions based on presumption of death , spousal rights , or inheritance , a court decision or official record is often required, which may necessitate a declaration of absence or a correction of population registry procedures for actual transactions.

8.2. Absence and Marriage

• A declaration of absence results in the termination of the marriage for the spouse; the liquidation of the property regime and inheritance relations proceed accordingly.

• Rights over the family home are assessed according to the scenario of the marriage ending in death; a family home annotation , it is taken into account in liquidation and inheritance distribution.

8.3. Liquidation of matrimonial property regime

• Calculations for participation in surplus value , value increase share , and participation claim are made according to the community property regime or the regime chosen by contract

• In cases of disappearance , determining the date of death is crucial in determining the moment the marital property regime ends

9) Property Deeds, Bank Accounts, Company Shares, Insurance and Social Security Transactions

9.1. Title deed and transfer of immovable property

• For the transfer of immovable properties to heirs after a presumption of death or disappearance, a certificate of inheritance and, in most cases, a court decision are required.

• In cases of disappearance, the land registry office a security deposit was provided.

• Family home and co-ownership annotations are taken into account in the division and sale processes.

9.2. Bank accounts and financial assets

• Banks base the determination of death on official records and often a court decision ; together with the certificate of inheritance, the block is released, distribution is made, and payments are processed.

• In cases of absence, banks meticulously implement the provisions of the court decision due to the nature of the collateral

9.3. Company shares and their implications in commercial law

• In a limited or joint-stock company , the share of a missing partner passes to the heirs; any transfer restrictions (such as approval requirements or pre-emption rights) should be examined.

• Management and representation authorities are reorganized according to the partnership structure; signature circulars and trade registry transactions are updated.

9.4. Insurance and compensation rights

• Life insurance policies operate according to beneficiary designation; in presumptions of death, the date and proof of the event are crucial.

• mandatory/optional insurances (traffic, comprehensive, personal accident), compensation processes are carried out based on proof of death at the time of the accident/incident.

9.5. Social Security Institution (SGK)

• widow/orphan pensions, death benefits, and lump-sum payments the death and the status of heir must be determined.

• cases of presumption of death or disappearance, the documents to be submitted to the institution include court decisions and population registry records.

10) Foreign Element: Lex Rei Sitae for Immovable Property, National Law for Movable Property

• Real estate: In Turkey, the transfer of inheritance regarding real estate is generally Turkish law(lex rei sitae).

• Movable property and personal status: The national law (citizenship) and of the place of residence may apply.

• Dual citizenship, multiple assets , and foreign estatescomplicate jurisdiction and applicable law; the Private International Law Act and bilateral/multilateral agreements are taken into consideration.

• Decisions regarding presumption of absence/death issued abroad recognition/enforcement or registration in the population registry .

Conclusion and Recommendations

• The presumption of death is a legal safety valve that, in extraordinary circumstances, ensures the conclusions of death persist even if the body cannot be recovered .

• In cases of disappearance , such as prolonged lack of news or disappearance under threat of death, a court decision resulting from announcement and waiting procedures ensures the systematic regulation of personality and family-inheritance relationships

• The opening of an inheritance, certificate of inheritance, security, marriage and property regime liquidation, land registry and banking transactions, company shares, insurance and social security aspects; documentation and registration .

• The presumption of simultaneous deathfundamentally alters the flow of inheritance when the order of death in the same event cannot be proven; the estate is directed to each deceased person's own group of descendants .

• In practice, waiting and announcement periods must be strictly adhered to; the protection of the estate, the proper determination of the security deposit, and of international elements are necessary.

• Since transaction security is essential in notary, land registry, banking, and social security transactions , it is not possible to proceed with most cases without a court order and civil registry registration