What Is A Reserved Share In An Inheritance? What Are The Reserved Share Ratios? What Is A Reduction Lawsuit?
What is a Reserved Share? What are the Reserved Share Ratios?
In cases where the testator has made a will or other dispositions upon death, it is very important to determine the legal reserved share of the heirs in order to prevent loss of rights. The testator may have infringed upon the reserved shares of the heirs through their inter vivos or testamentary dispositions and gifts. To prevent such infringements and potential loss of rights, the law grants heirs with reserved shares the right to request and sue for the reduction of such dispositions after the testator’s death.
The subject of the reduction lawsuit, which is intended to prevent such infringements and violations, is the reduction of the deceased’s dispositions that infringe upon the reserved share, such as gifts, etc., in proportion to the infringement, i.e., in proportion to the portion that interferes with the reserved share, and the allocation of this reduced portion to the heir with a reserved share.
Article 560 of the Turkish Civil Code regulates reduction lawsuits, and the first paragraph of this article states, “Heirs who cannot receive the equivalent of their reserved shares may sue for the reduction of dispositions that exceed the portion that the decedent could dispose of.”
As explained above, in order to exercise the right to request reduction, the following conditions must be met:
1. The testator’s dispositions upon death or inter vivos gifts have exceeded the disposal ratio (in a manner that infringes upon the reserved share)
2. The heir’s reserved share right has been violated.
Who Can File a Reduction Action?
The heir whose reserved share has been violated is authorized to file a reduction action. However, as might be expected, an heir who has waived their right through a renunciation of inheritance agreement, or who has been disinherited or deprived of inheritance, does not have the right to file a reduction claim.
In some cases, the creditors of heirs with reserved shares also have the right to file a reduction lawsuit. Pursuant to Article 562 of the Turkish Civil Code, if the heir is unable to pay their debts and fails to assert their rights despite seeing that their reserved share has been violated, their creditors may request and file a reduction lawsuit on their behalf.
The provision of Article 562 of the Turkish Civil Code subjects the authority to file a reduction lawsuit on behalf of the heir to certain conditions:
1. The creditors of the heir with a reserved share or the bankruptcy estate must have a certificate of inability to pay or a bankruptcy decision.
2. The heir with a reserved share must not have requested or filed a reduction lawsuit.
3. The creditors or the bankruptcy estate must have notified the reserved share heir of their intention to file a reduction action, and this notification must have been unsuccessful.
In reduction actions, the competent and responsible court is the Civil Court of First Instance at the last place of residence of the deceased.
In a reduction lawsuit, the defendant is the person in whose favor the gifts that infringe on the reserved share were made. The defendant may also be the person in whose favor the will was left, or a legal or appointed heir.
A person who believes that their reserved share has been infringed upon may only assert a reduction claim after the death of the decedent. This right begins to run from the day the heir learns that their reserved share has been violated, and the statute of limitations is one year. However, if the heir is unaware that their reserved share has been violated, the statute of limitations is ten years. The starting point of this period is the date the will is opened for dispositions made by will. On the other hand, in cases of reduction of dispositions and gifts made by inheritance contract or inter vivos transaction, the ten-year period begins to run from the date of the testator’s death. This is because these concepts do not fall within the concept of the opening of the will.
The reserved shares we mentioned are as follows:
Half of the inheritance share for the children of the deceased,
One-fourth of the inheritance share for each of the parents,
The entire legal inheritance share for the surviving spouse if he or she is an heir along with the parents or children,
In other cases, the reserved share refers to the situation where the testator cannot bequeath 3/4 of the inheritance share to any person or institution through a will or other disposition upon death. In other words, even if the testator has made a disposition that would reduce these reserved shares while still alive, the reserved shares are protected.
According to our law, the reserved share heirs in the first class are the descendants of the deceased (i.e., the entire first class), namely children, grandchildren, and great-grandchildren. In the second group, the deceased’s parents are entitled to a reserved share. On the other hand, siblings and their children are not entitled to a reserved share. There are no reserved heirs in the third group. Our law also grants a reserved share to the surviving spouse.
On the other hand, reserved shares and the disposal ratio are calculated based on the net value of the estate. Therefore, the following liabilities of the estate are first deducted from the estate’s assets to determine the values corresponding to the reserved share ratios.
1. Estate debts
2. Funeral expenses
3. Administrative expenses
4. Three months’ living expenses for those living with the deceased