What is Disinheritance (Iskat)?
Disinheritance; in other words, removal from inheritance (iskat), is regulated in Articles 510 and following of the Turkish Civil Code and covers the request of the deceased person (testator) to disinherit a reserved portion heir. This procedure takes place based on the reason for disinheritance specified unilaterally by the testator in their disposition (Article 512 of the Turkish Civil Code). However, if the testator does not state a reason for disinheritance in the mentioned disposition, the procedure becomes invalid.
Disinheritance is regulated between Articles 510 and 513 of the Turkish Civil Code as follows:
Article 510 – In the following cases, the testator may disinherit a reserved portion heir through a disposition mortis causa (a disposition effective upon death):
- If the heir has committed a serious crime against the testator or a close relative of the testator,
- If the heir has significantly failed to fulfill the family law obligations towards the testator or members of the testator’s family.
Article 511 – A person who is disinherited cannot receive a share of the inheritance nor can they file a reduction (tenkis) lawsuit. Unless the testator has made a different disposition, the share of the disinherited person is treated as if that person died before the testator, and their share passes to their descendants if any, or otherwise to the legal heirs of the testator. The descendants of the disinherited person may claim their reserved portion as if the disinherited person had died before the testator.
Article 512 – Disinheritance is valid only if the testator specifies the reason for disinheritance in the related disposition.
If the disinherited person objects, the burden of proving the stated reason falls on the heir benefiting from the disinheritance or the legatee.
If the reason cannot be proven or the reason for disinheritance is not specified in the disposition, the disposition is executed except for the reserved portion of the heir; however, if the testator made the disposition due to a clear mistake regarding the reason for disinheritance, the disinheritance is invalid.
Article 513 – The testator may disinherit a descendant for half of their reserved portion if there is a certificate of insolvency for debt payment against that descendant. However, this half must be specifically allocated to the born and unborn children of the disinherited descendant.
If, at the time the inheritance opens, the effect of the certificate of insolvency no longer exists or the amount of debt covered by the certificate does not exceed half of the disinherited heir’s share, the disinheritance is annulled upon the request of the disinherited person.
Reserved Shares Subject to Disinheritance
Disinheritance is particularly significant for heirs with reserved shares. This is because the testator can freely dispose of the shares of heirs who do not have reserved shares. Moreover, when an heir with a reserved share is disinherited, they completely lose their inheritance rights.
The reserved shares subject to disinheritance are regulated under Article 506 of the Turkish Civil Code and consist of three subcategories:
1.Descendants and the Right to a Reserved Share in Inheritance
The reserved share for the descendants of the deceased is half of their legal inheritance share. For example, if the deceased leaves behind three children and a spouse as heirs, each child and the spouse will have a 1/4 inheritance share. The reserved share of the children will be half of their inheritance share, which is equivalent to 1/8 of the total inheritance. Accordingly, the deceased cannot leave their entire estate to the spouse through a will; at most, they can leave 5/8 of the inheritance to the spouse without touching the reserved shares, while the remaining 3/8 must be divided equally among the three children. As mentioned, even if the deceased leaves all their assets to the spouse by will during their lifetime, the distribution will still be made according to the proportions stated above.
2.Reserved Share Rights for Each of the Mother and Father
According to the provision in Article 506 of the Turkish Civil Code (TMK), the reserved share for each of the mother and father is one-fourth (1/4) of their legal inheritance share.
3.Reserved Share Right for the Surviving Spouse
The reserved share of the surviving spouse is the entire legal inheritance share when they inherit together with descendants or with the deceased’s parents. In other cases (alone or with relatives from the third degree), it amounts to three-quarters of the legal inheritance share.
Reasons for Disinheritance
The reasons for disinheritance are divided into two categories: punitive (ordinary) and protective. In its decision dated 26.11.2013, file number 2013/15148, decision number 2013/16683, the 3rd Civil Chamber of the Court of Cassation examines the punitive (ordinary) reasons for disinheritance in two parts:
1- The heir commits a serious offense against the deceased (the testator) or their close relatives. It is not necessary for the offense to be completed, nor is a criminal conviction required. Neither pardon nor statute of limitations affect this. The serious offense means an unlawful act against the personality rights, physical integrity, or property of the testator, indicating that family ties have been severed. In determining this, civil law rules rather than criminal law will be applied. Offenses of the same nature committed against the testator’s close relatives also constitute grounds for disinheritance. Therefore, the offense does not necessarily have to be committed directly against the testator. The concept of “close relatives” includes all persons to whom the testator feels affection, respect, and loyalty, such as friends, fiancés, teachers, students, caregivers, protectors, or those cared for or protected by the testator (Turkish Civil Code Article 457/1).
2- The heir fails to fulfill family law obligations legally incumbent upon them toward the testator and their family with gross negligence (Turkish Civil Code Article 457/2). For example; failing to perform duties of loyalty, assistance, devotion, and care for children as regulated in Article 151 of the Civil Code, violating principles of mutual love, respect, and compassion between parents and children, failing to provide help in poverty and need, neglecting alimony obligations (Article 315 of the Civil Code), or engaging in conduct that disrupts family unity and peace.
The protective reason for disinheritance is entirely based on good faith by its nature and aims to protect the children of the heir disinherited by the testator. Accordingly, as stated in Article 513 of the Turkish Civil Code, protective disinheritance is the process by which the testator disinherits a descendant who has a certificate of insolvency regarding debt payment, for half of their reserved portion (forced share).
Additionally, disinheritance is included in Article 510 of the Turkish Civil Code (TMK).
In the following cases, the testator may disinherit a compulsory heir by a disposition mortis causa (a disposition upon death):
- If the heir has committed a serious offense against the testator or any of the testator’s close relatives,
- If the heir has significantly failed to fulfill the obligations arising from family law towards the testator or the testator’s family members.
Objection and Annulment Procedure Regarding Disinheritance
If the act of disinheritance is unjust, the heir may object to the relevant act and request its annulment or reduction. Accordingly, objections to disinheritance should be examined from both general and specific perspectives.
a) General Grounds for Objection
If the heir-plaintiff claims that the testator was incapacitated, or that the act of disinheritance was carried out as a result of error, fraud, or coercion, or if the will is formally invalid, the relevant disposition may be annulled. Consequently, after the annulment, the heir obtains full inheritance rights.
b) Specific Grounds for Objection
In addition to the existence of punitive (ordinary) disinheritance among the specific grounds for objection, certain special circumstances also grant the heir the authority to challenge the testamentary disposition related to the claim, thereby partially or completely nullifying it. The heir can make this objection by filing either a reduction (tenkis) or annulment (iptal) lawsuit.
The Competent and Authorized Court in the Lawsuit for the Annulment of Disinheritance
In a lawsuit for the annulment of disinheritance, the competent court is the court of the deceased’s last place of residence, while the court with jurisdiction is the civil court of first instance. In this matter, the parties may require the assistance of an inheritance lawyer, such as an inheritance lawyer in Antalya, to file and pursue the case.
Frequently Asked Questions
1. How is Disinheritance Done?
The disinheritance process is carried out through a will. It should be noted that the relevant will is not subject to formal requirements and can be made either as an official or a simple written document. In addition to a will, disinheritance can also be executed through a unilateral disposition in the form of an inheritance contract.
2.What Happens If the Reason for Disinheritance Cannot Be Proven?
As regulated in Article 512 of the Turkish Civil Code (TMK):
“Disinheritance is valid only if the testator specifies the reason for disinheritance in the testamentary disposition. If the disinherited heir objects, the burden of proving the existence of the stated reason falls on the heir or legatee benefiting from the disinheritance. If the reason cannot be proven or is not specified in the disposition, the disposition is carried out except for the disinherited heir’s reserved portion; however, if the testator made the disposition due to an evident mistake regarding the reason for disinheritance, the disinheritance shall be invalid.”
3.What is a Reduction (Tenkis) Lawsuit in Inheritance?
Legally, a reduction lawsuit is a method used to set legal limits on the dispositions a testator can make. The purpose of this lawsuit is to protect the rights of heirs with reserved portions, thereby preventing issues such as asset concealment, inequality in inheritance, and violation of reserved shares.
4.What Are the Consequences of Disinheritance for the Heirs?
● In the case of punitive disinheritance of a reserved-share heir, the heir loses their entire inheritance share and therefore also loses their status as an heir. Consequently, the disinherited person cannot benefit from the rights associated with heirship.
● In the case of protective disinheritance of a reserved-share heir, since it is a partial disinheritance, the heir does not lose their heir status. Therefore, the heir participates in the inheritance distribution with half of their reserved share.
Some Supreme Court Decisions Regarding Disinheritance
- “It is a legally established fact, confirmed by the Supreme Court’s review of cases registered under file number 2021, that it is not legally possible to determine the scope of the farm title deed records found in … Village, with respect to the immovable properties located there, according to the amount relied upon by the plaintiff heirs. It is understood that the immovable property subject to the case is located in … Village, and that the boundaries of the title deed records relied upon by the plaintiff, namely those in the … and Erkös (…/Öküz/Örköz) locations, have entirely indefinite borders. These boundaries cover wide areas, including places such as …, mountains, streams, forests, rivers, hills, which are not usable within these borders. Although the disputed property remains within an area that can only be defined by taking imaginary points on these broad boundaries and connecting them with imaginary straight lines, this area formed by these imaginary lines covers an area more than 20 times the amount recorded in the title deeds. Since it lacks fixed boundaries, it is not possible to determine its scope validly according to the amount specified in the title deed records. Therefore, it has not been proven that the immovable properties identified within the working area of … Village and subject to the case fall within the scope of the valid farm title deed records based on their amount. Furthermore, as the disputed immovable property falls within the forest cadastral boundaries finalized in 1967, even if it falls within the scope of the title deeds relied upon by the plaintiff heirs and their associates, it is classified as forest land nationalized under Law No. 4785, and pursuant to Law No. 5658, it is not subject to restitution. Consequently, the title deed records relied upon have lost their legal validity concerning the disputed immovable property. Therefore, it was necessary to uphold the judgment.” (Supreme Court 8th Civil Chamber, Decision dated 25.05.2022, File No. 2021/7527, Decision No. 2022/4964)
- “The case concerns requests for disinheritance pursuant to Article 510 of the Turkish Civil Code (TCC) in addition to the annulment of the adoption relationship. Since it is understood that the claim for disinheritance arises from the second book, excluding the third part, of the Turkish Civil Code No. 4721, jurisdiction belongs to the general court. It was deemed incorrect not to consider issuing a decision of lack of jurisdiction and referring the disinheritance claim to the Civil Court of First Instance. RESULT: Since the judgment was rendered without considering the principles explained above, it is incorrect. Therefore, the appeals for cassation are well-founded, and the judgment is REVERSED pursuant to Article 428 of the Code of Civil Procedure (HUMK).” (Supreme Court 8th Civil Chamber, Decision dated 08.04.2019, File No. 2017/9163, Decision No. 2019/3801)
- “Although the court decided to accept the case on the grounds that the conditions for disinheritance were not met and annulled the disinheritance agreement dated 21.11.2006 prepared by Kütahya 1st Notary Office, the decision does not comply with procedural and legal rules. The disinheritance agreement dated as explained was executed by the parties’ mother, the defendant T.. E.., and the deceased Y.E. The disinheritance agreement is a mortis causa disposition under Article 510 of the Turkish Civil Code (TCC), which takes effect upon the death of the person making the disposition. Since the defendant mother T.. E.., who executed the disinheritance agreement, is still alive, and inheritance only occurs upon death, it was incorrect for the court to accept the case including the disposition of the defendant Türkan and to annul the entire written agreement. Separately, the testator Yavuz Ergün stated the reasons for disinheritance in the agreement (TCC Art. 510/2). If the disinherited person objects, the burden of proof regarding the existence of these reasons lies with the heirs benefiting from the disinheritance (TCC Art. 512/2). If the reason is not proven or not specified in the disposition, the disposition is carried out except for the reserved portion of the heir (TCC Art. 512/3). For this reason, it was also incorrect to annul the disinheritance agreement in respect of the testator’s disposition exceeding the reserved share without considering the case as a reduction (tenkis) lawsuit and examining it within the framework of reduction provisions before reaching a conclusion.” (Supreme Court 8th Civil Chamber, Decision dated 16.09.2014, File No. 2014/8834, Decision No. 2014/16187)
- “According to the case file and the collected evidence, it is understood that the witnesses whose statements formed the basis of the judgment are the mother-in-law and father-in-law of the defendant … who benefited from the disinheritance. Furthermore, some witnesses narrating what they heard from the deceased does not mean that the plaintiffs violated their obligations arising from inheritance. Witnesses …, …, and … stated that they took care of the deceased during his illness and received payment from the plaintiffs. Additionally, witnesses …, …, …, and … declared that they did not witness any ill-treatment by the plaintiffs toward the deceased, and in the last stages of the illness, the plaintiff … took the deceased to chemotherapy. If the disinherited person objects, the burden of proving the existence of the stated reason lies with the heir or legatee benefiting from the disinheritance. However, according to the statements of the witnesses heard, the defendant has not proven the reason for disinheritance. In light of these explanations, it is not possible to consider the plaintiff’s attitude toward the deceased as a significant violation of the obligations arising from family law.” (Supreme Court 14th Civil Chamber, Decision dated 02.03.2015, File No. 2015/2911, Decision No. 2015/2239)
- “If the existence of the reason is not proven or the reason for disinheritance is not specified in the disposition, the disposition shall be executed except for the reserved portion of the heir; however, if the testator made this disposition due to an obvious mistake regarding the reason for disinheritance, the disinheritance shall be invalid. Since the defendants have failed to prove the reason for disinheritance, pursuant to Article 512/3 of the Turkish Civil Code (TCC), the disinheritance should be valid only to the extent of the testator’s disposable portion. In other words, it was incorrect to decide without considering that the relevant part of the will concerning disinheritance should be annulled within the limits of the disposable portion, allowing the plaintiff to claim their reserved portion and that the case should continue as a reduction action. In this situation, the court’s duty is, pursuant to Article 512/3 of the TCC, to execute the disposition related to disinheritance of the plaintiff heir only to the extent of the reserved portion within the disposable portion, and to proceed with the case as a reduction lawsuit as explained in Articles 564 et seq. of the TCC, and after determining all assets and liabilities in the deceased’s estate, to render a judgment based on the report to be obtained from an expert. RESULT: For the reasons explained above, the judgment is REVERSED in favor of the plaintiff pursuant to Article 428 of the Code of Civil Procedure.” (Supreme Court 3rd Civil Chamber, Decision dated 31.10.2018, File No. 2017/975, Decision No. 2018/10793)
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