Reserved Share, Violation of Reserved Share, and Reduction Action in Inheritance Law

What is the Reserved Share (Preserved Share) in Inheritance Law?

Inheritance law is a complex branch of law that regulates how a person's assets are distributed among their rightful heirs upon their death, aiming to protect the family, the fundamental building block of society. While the Turkish Civil Code (TMK) recognizes the testator's freedom to dispose of their assets as they wish (through wills, inheritance agreements, or inter vivos donations), this freedom is not absolute. At this point, the "reserved share" (mahfuz hisse) emerges as the most important "balancing mechanism" of our legal system.

The Legal Nature and Fundamental Purpose of Reserved Shares

The reserved share is an "inviolable" inheritance share directly allocated by the legislator to specific heirs, which the testator cannot take away even with their own will. In our legal system, the testator's freedom to transfer their assets to whomever they wish ends when it infringes upon the rights of the legal heirs. The reserved share is a safety net designed to prevent the assets accumulated by the testator throughout their life from being taken away from their relatives through unexpected or unjust dispositions, thus securing the livelihoods and economic futures of family members.

This institution is a product of the pursuit of social justice. It prevents other heirs from being completely deprived of their inheritance if, by a sudden decision or under the influence of third parties, the testator leaves all their assets to a foundation, a stranger, or one of the legal heirs. The reserved share provides the heir not only with the right to receive a share but also a legal status that secures their heirship and place within the family.

Who is the heir entitled to a reserved share?

The individuals entitled to a reserved share are limited in number by law. This does not mean that every heir is entitled to a reserved share. For example, siblings, although legal heirs under inheritance law, are not "heirs entitled to a reserved share." Therefore, the testator can draw up a will that completely disinherits their siblings, and this disposition is legally valid. Heirs entitled to a reserved share consist of the following three groups:

1. Descendants: These are the children, grandchildren, and their descendants, if any. The right of descendants to a reserved share continues throughout the generations. As long as the child is an heir, the grandchildren do not have a reserved share; however, if the child is not an heir or is disinherited, the grandchildren inherit this right.
2. Parents: These are the deceased's living parents. While the inheritance rights of parents differ in the case of descendants, if there are no descendants, the parents are the primary and most important reserved heirs to the inheritance.
3. Surviving Spouse: This is the spouse with whom the marriage continues at the time of the testator's death. The spouse is one of the most strongly protected individuals under Turkish law, both as a legal heir and as an heir entitled to a reserved share of the inheritance.

Reserved Share Ratios and Calculation 

Reserved shares are percentages calculated based on legal inheritance shares. It is not possible to calculate the reserved share without knowing what the heir's legal inheritance share is. The legislator has determined these percentages as follows:

• For descendants: Half (1/2) of the legal inheritance share.
• For the mother and father: One-fourth (1/4) of the legal inheritance share.
• For the Surviving Spouse: If inheriting together with descendants or parents, the entire legal inheritance share; otherwise, three-quarters (3/4) of the legal inheritance share.

The application of these ratios varies according to the situation at the time the inheritance is opened (the moment of the testator's death). For example, when a person leaves behind two children and a spouse, the legal inheritance shares are divided according to a specific ratio, and the above ratios are applied to this divided value to determine the amount of the reserved share (as a net monetary value or share).

What constitutes a violation of the reserved share?

A will, inheritance agreement, or donations made by the testator immediately before their death, if they reduce the total value of the estate below the reserved shares, constitutes a "violation of reserved shares." For example, in a case where an heir has a total estate of 100 units and a reserved share of 20 units, if the testator bequeaths 90 units to a third party through a will, a violation of 10 units occurs. This means that 10 units have been unjustly taken from the heir.

Why are we focusing on the concept of "Breach"?

In law, a violation of the reserved share occurs when the testator's freedom is exceeded. If the testator remains within the disposable portion (free portion), this is not a violation. The violation only begins when the "inviolable" boundary of the reserved shares is crossed. This is where a reduction lawsuit comes into play. A reduction lawsuit aims not to annul the disposition, but only to "reduce" it in proportion to the violated portion. In other words, the aim is not to completely negate the testator's will, but only to uphold the legal right of the heir entitled to the reserved share.

The Importance of the Reserved Share: Family and Economic Stability

The reserved share is a mechanism that resolves the tension between the testator's freedom and the future of the heirs. Without this institution, the heirs' expectations of the inheritance would remain completely uncertain, and family trust mechanisms would weaken. The legal system supports individuals' right to dispose of their own property as they wish, while also preventing these dispositions from being made "irresponsibly" and causing harm to family members.

In this context, the right to a reserved share is the most fundamental line of defense for inheritance rights. When an heir believes their reserved share has been violated, they are obligated to prove it. This requires a complex estate account, accurate valuation of assets, and correct calculation of legal inheritance shares. This 800-word introduction actually opens the door to one of the deepest debates in inheritance law: freedom or social responsibility? Our law, in this delicate balance that protects both, makes the reserved share "indispensable".

Savings Rate and the Right to Free Disposition: The Limits of the Testator

The fundamental tension in inheritance law lies between the testator's desire to dispose of their assets as they see fit and the legislator's aim to protect the heirs. The freedom to determine the fate of one's assets upon death is defined in the Turkish Civil Code as the "right of free disposition." However, this right does not imply unlimited authority, but rather a specific "disposition ratio." The testator can draw up a will or transfer their assets to third parties through donation, within certain limits, without disregarding their legal obligations to their heirs.

The Legal Definition and Logic of the Savings Rate

The dispositive share is the portion of the inheritance that the testator can leave to any person or institution they wish, through a will or donation, without affecting the rights of the reserved heirs (spouse, descendants, parents). In our legal system, the testator's assets are divided into two main parts: the "reserved shares" of the legal heirs and the "portion that the testator can freely dispose of." The dispositive share is the second part and represents the area where the testator's will is most freely exercised.

The determination of this ratio varies according to the profile of the heirs at the time of the testator's death. Therefore, when a will is drawn up or large-scale transfers of assets (donations) are made during the testator's lifetime, it is essential to meticulously determine who the surviving heirs are and the total amount of their reserved shares calculated based on their legal inheritance portions.

Calculating Savings Rates

Calculating the disposable portion is a mathematical equation. The total assets of the deceased, after deducting debts, constitute the "estate" value. The remaining amount after deducting the shares of heirs entitled to reserved shares is the "disposable portion".

The general distribution of inheritance based on heir status is as follows:

1. If the deceased has descendants (children): The reserved share of the descendants is half of the legal inheritance shares. In this case, the deceased can freely dispose of half (1/2) of the estate.
2. In cases where the deceased has only parents as heirs: The parents' reserved share is one-fourth of the legal inheritance share. In this case, the deceased has the right to dispose of three-fourths (3/4) of the estate.
3. In cases where the deceased's surviving spouse is an heir: If the deceased has no descendants or parents, the spouse's reserved share is quite high. The spouse has a reserved share over the entire legal inheritance share. In this case, the free disposable portion is the limited amount remaining after deducting the legal inheritance share.

These ratios define the "legality limits" of gratuitous transfers made by the testator during their lifetime or testamentary dispositions made after their death. If the testator, for example, leaves all their assets (in a 1/1 ratio) to a third party by will while they have descendants, they violate the children's reserved share, and this constitutes grounds for a reduction of the inheritance share lawsuit.

Ways to Exercise the Power of Free Disposition

The testator can use their savings in two main ways:

• Testamentary Dispositions: Drawing up a will or making an inheritance agreement. Through these means, the distribution of inheritance after the testator's death is determined.
• Inter vivos Dispositions: Donations made by the testator during their lifetime. In Turkish law, not every donation made by the testator during their lifetime is considered "reducible" (tenkis). However, donations made within one year prior to the opening of the inheritance, and donations made with the intention of harming heirship rights, are included in the calculation of the disposition ratio as if they were bequeathed in a will, and are subject to reduction if they violate the reserved share.

The Consequences of Exceeding Savings Limits

Exceeding the prescribed share does not invalidate the transaction. In other words, the testator's will does not become null and void. However, heirs entitled to a reserved share have the right to claim a "reduction" (reduction) to the extent that their share has been violated. A reduction lawsuit does not completely annul the disposition; it only reduces the portion of the disposition that violates the reserved share "proportionally" in order to protect the reserved share.

For example, in a will where the disposition rate exceeds 20%, instead of annulling the entire will, the court may decide that this 20% portion should be paid to the heirs entitled to a reserved share. This mechanism aims both to protect the testator's intention in the will (as much as possible) and to defend the "inalienable" right of the legal heirs.

The Limits of Freedom to Save and Legal Guarantees

While the testator's right to freely dispose of their assets is a natural extension of their property rights, the value placed on family in Turkish law has limited the absolute nature of property rights. When a person disposes of their assets, they are essentially making a "future projection." When this disposition disregards the economic well-being of the legal heirs, the balancer of justice (the judge) of the legal system intervenes.

For heirs, it is crucial to know the limits of the will and to act within the legal timeframe in case of a breach. Any transaction exceeding the bequest carries a "legal risk," which can be eliminated through a reduction lawsuit from the date the inheritance was opened. Therefore, for those preparing a will, "not exceeding the bequest" is the most fundamental way to prevent their will from becoming the subject of future litigation.

Reduction of Inheritance Share Lawsuit: Legal Recourse and Process in Cases of Violation of Reserved Share

The most fundamental legal mechanism a rightful heir can use to reclaim their violated right due to the testator exceeding their disposition limits the "Tenkis Lawsuit." "Tenkis" literally means "reduction." This lawsuit does not aim to completely annul the testator's will or donations; it only requests a reduction proportional to the portions where the rightful heir's share has been violated.

The Legal Nature of the Reduction Lawsuit

A reduction lawsuit is a "constitutive" lawsuit. This means that upon acceptance of the lawsuit, the testator's disposition becomes partially null and void, and the heir gains the right to demand the return (or payment of) the violated portion. The subject of this lawsuit is the testator's disposition that infringes upon the reserved shares of the legal heirs.

The plaintiff is always the heir whose reserved share has been violated. The defendant, on the other hand, may be the person to whom the testator bequeathed property in violation of their reserved share (legal beneficiary or recipient).

Competent and Authorized Court

The competent court for reduction of inheritance shares cases the Civil Court of First Instance. The authorized court is the court of the deceased's last place of residence. Although the distribution of inheritance or other processes related to the estate are heard in the Magistrates' Court, reduction of inheritance shares cases are heard in general courts because they are considered a "property dispute".

The Litigation Process and Burden of Proof

The legal process is based on proving that the reserved share has been violated. Some critical points to note in this process are as follows:

1. Determining the Estate: When a lawsuit is filed, the court conducts an expert examination to determine the value of the deceased's estate at the time of death. This requires the individual identification of all assets, debts, and gifts subject to reduction.
2. Sequential Reduction: If the testator has made multiple dispositions (for example, both a will and donations made within the last year), the law prescribes a specific order. Reduction is applied starting with the most recent dispositions. In other words, the testator's intention is balanced by working backwards from the most recent disposition.
3. Allegation of Collusion: If the defendant claims that the transaction in question is a "sale," the plaintiff must first prove that the transaction was collusive (sham). Witnesses and evidence proving that what appears to be a sale is actually a donation will support the acceptance of the reduction claim.

Refund Method: In kind or in cash?

If the reduction of inheritance claim is accepted, how is the violated portion returned to the heir?

• Restitution in Kind: If the value of the movable or immovable property subject to reduction is consistent with the amount of the reserved share violated, and if the property is divisible, the court may decide to return the property "in kind" (register it in the name of the heir).
• Cash Restitution: Often, when the property is indivisible or has been disposed of, the court grants the dispositive creditor a choice. The dispositive creditor can retain the property by paying the heir the violated amount in cash. If payment is not made, the property will be sold through forced execution and the share will be given to the heir.

Prerequisites for a Reduction of Shares Lawsuit

A reduction of inheritance share lawsuit is not resolved immediately with a simple request. The court requires the following conditions to be met in order for the case to be heard:

• The Reserved Share Must Have Been Actually Violated: If the calculation shows that the heir's reserved share has been preserved, the case is dismissed. In other words, if there is no violation, there is no subject matter for the lawsuit.
• Heir Status: The plaintiff must prove their status as an heir entitled to a reserved share.
• Timely Application: Reduction of inheritance shares is subject to forfeiture periods. Failure to file a claim within these periods will result in the dismissal of the case.

A reduction lawsuit is a process of restoring the "scales of justice" in inheritance law. When a conflict arises between the testator's right to free disposition and the family security of the heirs, a reduction lawsuit is a legal right that resolves this conflict. It is not enough for the plaintiff heir to simply know their right; they must bring this right to court within the legal time limits and using the correct methods. In the next section, we will complete our series by addressing one of the most critical elements of this lawsuit: "statute of limitations" (preclusive periods) and calculation methods.

Calculation Method and Statute of Limitations in Reduction of Shares Lawsuits

A lawsuit for reduction of inheritance shares filed against a violation of the reserved share is one of the most technical and calculation-oriented processes in inheritance law. The success of the lawsuit depends not only on proving the existence of the violation, but also on correctly determining the "value of the deceased's estate for the purpose of reduction calculation." In this final section, we will detail the statute of limitations (preclusive periods) and complex calculation methods involved in the lawsuit.

Statute of Limitations in Reduction of Shares Cases

The right to claim reduction of inheritance shares is not an indefinite right. To prevent uncertainties that might arise even many years after the distribution of the inheritance, the legislator has stipulated a two-stage statute of limitations (Turkish Civil Code Article 571).

1. One-Year Period from the Date of Learning: Heirs entitled to a reserved share one year . The concept of "learning" refers to the moment the heir understands the will or disposition made and that this disposition infringes upon their reserved share.
2. Ten-Year Period After Death: In any case, the right to file a lawsuit regarding wills or other dispositions expires ten years after the death of the testator. This period is a strict limit established to protect the legal security of the disposition creditor

These periods are not "statute of limitations" but "preclusive periods." This means that the court is obligated to consider whether these periods have expired, even if the parties do not raise the issue.

How to calculate reduction? 

In a reduction of inheritance share lawsuit, the court's primary goal is to identify every penny exceeding the "disposable portion" of the deceased's estate. This process works step-by-step as follows:

• Step 1: Determining the Estate Assets: All assets of the deceased (real estate, cash, vehicles, shares) at the time of death are determined. These values ​​are calculated according to current market conditions.
• Step 2: Reducing Liabilities: Debts of the estate, funeral expenses, and costs related to sealing/managing the estate are deducted from the assets.
• Step 3: Adding (Restoring) Donations Subject to Reduction: Donations made by the testator during their lifetime (determined to be subject to reduction) are “virtually” added back to the estate. This constitutes the “reduced estate” of the inheritance.
• Step 4: Calculating the Reserved Share: Based on the reduced estate, the heir's reserved share (for example, 12.5% ​​of the estate) is determined mathematically.
• Step 5: Identifying the Violation: The portion of the inheritance allocated to the heir through a will or donation is compared to this "reserved share amount." If the heir's share is less than their reserved share, the difference constitutes a violation.

During the calculation, "real estate valuation" is particularly important. The value of a house donated by the testator years ago is calculated based on its current value. However, for items such as "foreign currency" or "assets showing appreciation," the date to which the value should be taken is determined by the current jurisprudence of the Supreme Court. Generally, it is essential to adjust the value at the time of the transaction to current market rates (inflation and capital appreciation adjustment).

The Relationship Between Collusion and Reduction

The process becomes much more complicated if the heir claims that the transaction was not actually a donation but a "sale" designed to defraud the heir of their inheritance. In this case, the heir can first file a lawsuit for the cancellation and registration of the title deed due to "Fraudulent Transaction by the Deceased" (defraud of inheritance). There is no time limit for filing a lawsuit for fraudulent transaction by the deceased. If the fraud is proven, the property in question reverts to the estate, and the heirs receive their shares without the need for a reduction lawsuit.

A reduction lawsuit is not merely a "money" lawsuit; it is also a restoration of the balance of equity in inheritance law. It is essential that the calculations be performed by an expert (a lawyer or financial advisor specializing in the estate). An incorrect calculation could lead to the dismissal of the case or the heir receiving less than their fair share.

Inheritance law processes are highly emotional and affect family relationships. Therefore, seeking guidance from a professional lawyer in your pursuit of justice is the safest way to prevent loss of rights.