Reserved Share and Compulsory Inheritance

Entrance

Inheritance law is the body of rules that regulates to whom and in what manner a person's assets are transferred after their death. Two concepts stand out in this context: compulsory inheritance and reserved share. Compulsory inheritance is the legal status that allows certain individuals to become heirs even against the will of the testator. The reserved share, on the other hand, protects the inheritance rights of these compulsory heirs by ensuring that the testator's dispositions are within certain limits. This article will outline the conceptual framework and examine how the relevant provisions of the Turkish Civil Code, their application, limitations, problematic areas, and case law have shaped this system.

Concepts and Fundamental Principles

What is Compulsory Inheritance?

Compulsory inheritance is the right to inherit that arises among certain individuals regardless of the testator's will. The Turkish Civil Code regulates who are compulsory heirs, under what conditions this right can be exercised, and how the testator's claims are restricted with respect to these individuals.

The Inevitability and Definition of Reserved Share

The reserved share refers to the portion of the inheritance that obligatory heirs cannot be completely deprived of by any dispositions made by the testator when leaving the inheritance. In other words, the testator may dispose of certain assets or make a will; however, the reserved share of obligatory heirs cannot be eliminated by these dispositions. The reserved share is the minimum inheritance right possessed by obligatory heirs.

Who are the Compulsory Heirs under Turkish Law?

According to the Turkish Civil Code, the following individuals are compulsory heirs:

1. Descendants, meaning children, grandchildren, etc.

2. the mother and father (parents) have no descendants, or if those lower in lineage take precedence.

3. If the marriage continues while the deceased is still alive .

These heirs have priority according to the equity and regulations established by the Turkish Civil Code. There are rules of priority and degree among compulsory heirs; for example, descendants come first, if they are not present, then parents come into play, and the spouse always has a certain share.

Legal Structure of Reserved Shares

Which heirs are entitled to a reserved share?

Mandatory heirs have a reserved share right. However, not every mandatory heir is necessarily entitled to a reserved share. For example:

• If there are descendants, the parents' right to a reserved share becomes ineffective in the presence of the descendants (i.e., they may not have a right to a reserved share).

• A spouse's right to a reserved share is also subject to certain conditions; this right is affected if there is no marital bond or if a divorce process is underway.

Reserved Share Ratios

The reserved share ratios are clearly regulated in the Turkish Civil Code. In summary:

• The reserved share for obligatory descendants is half of the inheritance shares. This means the testator can only freely dispose of half of their inheritance share; the other half is reserved for their descendants.

• If there are no descendants but only parents, then the parents have a reserved share; however, this also establishes a limit to the portion that can be disposed of.

• The spouse's right to a reserved share is protected as long as the marriage with the deceased exists and the surviving spouse maintains the right to self-defense; however, the spouse's share is balanced with that of other required heirs in terms of reserved shares.

The Non-Disposable Portion: Preservation of the Reserved Share

The testator may wish to deprive a mandatory heir of their reserved share through a will, donation, or other means of disposing of their assets. However, the Civil Code restricts this wish. Mandatory heirs can request the protection of their reserved shares; they can use legal means such as having the dispositions declared invalid or pursuing a supplementary lawsuit to complete their reserved share.

Relevant Provisions: Reserved Share and Compulsory Inheritance in the Turkish Civil Code

The relevant articles of the Turkish Civil Code clearly regulate the concepts of reserved share and compulsory inheritance:

• The general principles of the inheritance provisions of the law determine compulsory inheritance.

• The percentages and limits regarding the reserved share are clearly stated.

• The time limits and conditions for lawsuits (such as supplementary lawsuits) that can be filed to protect the non-disposable portion and the reserved share are specified.

According to these provisions, the testator's freedom is limited in favor of protecting compulsory heirs.

Application and Problem Areas

The Conflict Between Freedom of Saving and Reserved Share

The testator has a certain degree of freedom in disposing of their assets. For example, they can make donations or draw up a will. However, these dispositions are legally restricted when they begin to infringe upon the right to a reserved inheritance. Formalities such as the transfer of the disposed portion and the will being in written form are important for the validity of the disposition.

Completion Case

One of the avenues available to compulsory heirs when the reserved share is violated is a supplementary lawsuit. In this lawsuit, if the testator's dispositions have reduced the reserved share, the difference is claimed. In practice, courts examine issues such as which assets are included in the dispositions, the impact of the testator's debts on the assets, and the validity of the disposition.

Time Limits and Statute of Limitations

There are specific time limits for filing a lawsuit to protect and supplement the reserved share. An heir who learns of a violation of the reserved share upon the death of the testator must exercise their right to sue within a specified period. These time limits are regulated in accordance with general lawsuit deadlines in inheritance law. Failure to comply with these deadlines may result in the loss of rights.

International and Dispute Situations

The principles of protecting reserved shares and compulsory inheritance may vary depending on the country where the deceased's assets are located and the heir's place of residence. Particularly in international inheritance law, conflicting laws arise, along with specific situations such as citizenship status and the inheritance of properties owned by foreign entities. In Turkish law, established case law has determined the application of the law to foreign entities.

Case Law Examples and Sensitivities

The Turkish judiciary has made several crucial decisions in cases involving allegations of violations of reserved share rights:

• In one case, the court calculated the reserved share difference by taking into account the volumetric and qualitative effects of donations made between the date the will was made and the date of the testator's death.

• Another ruling stated that the deceased's debts should be deducted before the distribution of the inheritance; and that the fact that these debts reduce the assets affects the capacity to save, and this should be taken into account when calculating the reserved share.

• Regarding the spouse's reserved share, factors such as the duration of the marriage, whether the marital union is continuing or not, and the spouse's financial contribution have emerged as elements influencing certain decisions.

These precedents develop solutions that balance both the limits of the testator's will and the protection of the rights of compulsory heirs.

Legal Issues and Criticisms

The Testator's Will vs. Protection of the Compulsory Heir

One point of criticism is the difficulty in balancing the testator's right to dispose of their assets with the mandatory heir's right to protection. Some argue that the rights of the mandatory heir should be more strongly protected, while others maintain that the testator's freedom should be flexible.

Problems of Proportional Justice

While the reserved share system is important for ensuring proportional fairness to the deceased's relatives, especially descendants, factors such as the deceased's personal circumstances, the nature of their assets, and family relationships can sometimes make achieving this proportional fairness difficult.

Practical Challenges: Valuation, Determining Savings

Technical issues such as when and at what value savings should be recognized (the value at the time of the deceased's death or the date of the donation), the valuation of real estate, and determining which period debts relate to are frequently debated in courts.

Cultural and Moral Dimension

In some societies, testators are unable to fully express their wishes in their wills or dispositions due to debt, economic crisis, or social pressure. The institution of the reserved share legally enshrines the sense of social justice in such cases. However, in practice, this moral and ethical expectation is often seen to conflict with legal realities.

Developments and the Perspective on Judicial Reform

Turkish inheritance law has undergone changes from time to time. of legal reform to simplify inheritance law, make its application easier, or harmonize it with international inheritance law.

Here are some suggestions:

• The regulation of reserved share ratios and mandatory heir identities should be clearer and require less interpretation.

• Expediting the completion lawsuit procedure and standardizing expert valuation.

• Clearly codifying the rules to be applied in cases where international heritage sites clash with foreign laws.

Application Example: Calculation

It would be helpful to illustrate the calculation of the reserved share with an example.

• The deceased left behind a wife and two children.

• Total inheritance value (excluding debts) is 300,000 TL.

• His spouse and children are compulsory heirs.

• Once the legal inheritance shares of the children and spouse are determined, their reserved shares become apparent.

In this case, the reserved share is calculated for the children as they are descendants. After determining the legal shares of the children and the spouse, the children's reserved share is half of that. If the testator has made a donation or will distributing all legal shares, the children have the right to claim the difference in their reserved shares.

Conclusion

Reserved shares and compulsory inheritance are among the most critical areas of inheritance law. These institutions aim to protect the relatives of the deceased while respecting the deceased's will. The Turkish Civil Code has quite clear regulations on this matter, but in practice, issues such as valuation, the nature of dispositions, and the timeframe give rise to debate.

From a legal security perspective, it is important that testators make their dispositions while respecting the limits of the reserved share, that the will is clear and formal, that heirs are aware of their rights, and that courts, in their jurisprudence, make decisions that maintain this balance. In this way, the protection of the reserved share right and the principles of social justice provided by compulsory inheritance are upheld.