Disinheritance
Disinheritance is subject to strict conditions, taking into account the social, economic, and family ties between the deceased and their relatives. As a rule, the deceased cannot dispose of the reserved shares of the spouse and descendants, who are reserved heirs. In other words, if there are no conditions for disinheritance, the reserved heirs will receive their reserved shares even if the deceased does not want them to. The testator may dispose of the portion remaining after the reserved shares as they see fit. The ratio of the reserved shares of the heirs is specified in Article 506 of the Turkish Civil Code.
Disinheritance or exclusion from inheritance deprives the reserved heirs of their reserved shares. Heirs with reserved shares who are disinherited cannot exercise any inheritance rights, such as filing a reduction lawsuit, claiming a share of the inheritance, or filing a lawsuit.
The institution of disinheritance applies only to heirs with reserved shares. This situation arises from the fact that the testator has the ability to deprive legal or voluntary heirs who do not have a reserved share of the inheritance by his own will. However, it should be noted that the situation of persons appointed as heirs by an inheritance contract is similar to that of heirs with a reserved share. This is because the testator cannot unilaterally revoke the inheritance contract. In this case, if the necessary conditions for disinheritance are met, the testator may unilaterally revoke the inheritance contract by means of a testamentary disposition and disinherit the person.
According to Article 510 of the Turkish Civil Code, disinheritance must be made by means of a testamentary disposition. A testamentary disposition refers to a will or inheritance contract. The power to disinherit lies solely with the testator. As stated, disinheritance is only possible in the cases listed in Articles 510 and 513 of the law. These reasons are limited in number. In other words, disinheritance cannot be based on any other reason outside of these.
Types of Disinheritance (Disinheritance)
Disinheritance is divided into two types: punitive disinheritance and protective disinheritance.
1. Punitive Disinheritance
According to Article 510 of the Civil Code, in order for the testator to disinherit a reserved heir, the conditions for disinheritance must be met. Disinheritance may occur in two situations. In this context, the conditions for disinheritance are as follows:
-In order for a reserved heir to be disinherited, the heir must have committed a serious crime against the deceased or their close relatives.
A serious crime is evaluated according to subjective criteria from a family and social perspective, rather than according to criminal law provisions. A typical example of this is the crime of defamation, which is commonly encountered in practice. In such cases, it is not necessary for the perpetrator to be convicted of the crime in order to be disinherited. The fact that the investigation remains inconclusive due to the statute of limitations, pardon, etc., does not prevent disinheritance. For a serious crime to be a reason for disinheritance, it must be unlawful. In other words, acts committed for reasons such as legitimate defense or necessity, even if they cause harm, cannot be grounds for disinheritance because they are lawful.
As stated in the law, the fact that the act was committed directly against the deceased or their close relatives does not change the outcome. Of course, it is important to determine who is considered a close relative. Close relatives are those who share the deceased’s joy and sorrow.
Another reason is the failure of the heir with a reserved share to fulfill their obligations arising from family law towards the deceased or their family to a significant extent.
Children not caring for their disabled parents, siblings acting contrary to their maintenance obligations, and spouses acting contrary to their obligations of fidelity and assistance to each other are considered within this scope.
1.2. Consequences of Criminal Disinheritance
According to Article 511 of the Turkish Civil Code, a person disinherited from the estate cannot receive a share of the estate or file a reduction lawsuit. If the disinherited person has no descendants, the testator may dispose of the disinherited heir’s reserved share as they see fit. However, if the disinherited heir has descendants, the reserved share is inherited by the descendants. In this case, the testator has no freedom of disposal.
1.3. Cancellation of Criminal Disinheritance
Even if the testator has disinherited the heir by will, this disposition is not exempt from cancellation. In this context, the disposition of disinheritance may be removed by cancellation or reduction proceedings.
1.3.1. Action for Annulment
If the disinheritance was made in violation of the formal requirements prescribed by law or if the testator was incompetent, the disinheritance may be annulled. Additionally, if the testator was under a clear mistake regarding the reason for disinheritance, the disinheritance may be annulled. Examples of clear mistakes include believing that the person who assaulted them but whose face they could not see was their son/daughter/spouse, or believing that the source of the false accusations made against them was their son/daughter/spouse.
With the cancellation decision, the heir receives their share of the inheritance as if they had never been disinherited. In this respect, the cancellation decision has retroactive effect. In this case, the heir receives their share of the inheritance rather than their reserved share. Only the person who has been disinherited can file a lawsuit for the cancellation of the disinheritance. The heirs of the disinherited person do not have the right to file a cancellation lawsuit.
1.3.2. Reduction Lawsuit
If the reason for exclusion from inheritance is not specified in the will or if the reason given does not justify exclusion, the heir may request a reduction of their reserved share. In other words, in this case, the heir receives only their reserved share.
2. Disinheritance Due to Inability to Pay Debts
Certain conditions must be met for this institution, defined as protective disinheritance or disinheritance due to inability to pay debts, to be applicable. These conditions are as follows:
-The disinherited heir must have descendants.
Therefore, for disinheritance, the heir to be disinherited must have descendants. The primary purpose of protective disinheritance is to protect the economic future of the heir’s descendants. The concept of descendants includes children, grandchildren, great-grandchildren, and the continuation of the lineage within or outside of the marital union. In this case, the heir is disinherited from half of their reserved share.
-The heir must be insolvent in paying debts.
In other words, the heir must be unable to pay their debts, and an insolvency certificate must have been issued against the heir under the Enforcement and Bankruptcy Law. Only in the presence of such a document can the heir be disinherited from half of their reserved share. Similarly, the reason for the heir’s inability to pay their debts is irrelevant. Whether the reason stems from the heir’s extravagant lifestyle or the bankruptcy of a commercial enterprise, if an insolvency certificate has been issued against the heir, this legal option applies.
-Protective exclusion is made in favor of the heir’s existing or future children.
-With protective exclusion, half of the heir’s reserved share is allocated to the heir’s existing and future children.
-Protective exclusion must be made by will or inheritance contract.
2.1. Cancellation of Protective Disinheritance (Disinheritance)
According to Article 513 of the Turkish Civil Code, if the judgment of the certificate of insolvency has lapsed at the time of the opening of the inheritance, or if the debt contained in the certificate of insolvency does not exceed half of the heir’s share of the inheritance, the disinheritance is canceled.
Forgiveness of the Heir by the Testator
Another important point to note is the forgiveness of the heir. If the testator has revoked the disinheritance despite the existence of the necessary conditions for disinheritance, they cannot subsequently disinherit the heir on that basis.
Liability for Estate Debts
An heir disinherited (removed from inheritance) cannot benefit from any rights or interests conferred by the status of heir and is not bound by any obligations arising from the status of heir. In this context, an heir disinherited is not liable for estate debts. The amounts received by the heir in lieu of their inheritance share are subject to reduction.