Rejection of Inheritance
The rejection of inheritance is addressed in Articles 605 and following of the Turkish Civil Code. The legislator, through the relevant regulation, grants both legal and appointed heirs the right to refuse the inheritance; in certain cases, the law stipulates that the inheritance shall be deemed rejected without any declaration of intent.
Turkish Civil Code, Article 605: Legal and appointed heirs may refuse the inheritance.
If, at the time of death, it is clearly evident or officially determined that the decedent is insolvent, the inheritance is considered rejected. Examining the relevant legal text, inheritance can be rejected in two ways. The first is when heirs refuse the inheritance voluntarily according to their own will, which is referred to in doctrine as “actual rejection.” The second is when it is clearly evident or officially determined that the decedent was insolvent at the time of death; in such cases, the inheritance is deemed rejected by operation of law without the need for any declaration of refusal. This second method is referred to in doctrine as “rejection by operation of law.”
In this article, the concept of rejection by operation of law, its conditions, consequences, annulment, and its application in practice in line with decisions of the Court of Cassation will be examined.
Rejection of Inheritance by Operation of Law
Rejection of inheritance by operation of law is regulated under Article 605/2 of the Turkish Civil Code (TCC). The relevant provision states: “If, at the time of death, it is clearly evident or officially determined that the decedent is insolvent, the inheritance shall be deemed rejected.” This indicates that if the decedent’s insolvency is clearly evident or officially established at the time of death, the inheritance is considered rejected without any declaration of refusal.
“…Article 605 of the Turkish Civil Code No. 4721 is organized under the heading ‘B. Rejection; I. Declaration of Rejection; 1. Right to Reject.’ Its first paragraph provides: ‘Legal and appointed heirs may refuse the inheritance.’ This constitutes an unconditional, voluntary rejection (actual rejection) and is not applicable in this case. The second paragraph states: ‘If, at the time of death, it is clearly evident or officially determined that the decedent is insolvent, the inheritance shall be deemed rejected.’ This provision constitutes a legal presumption. The preceding sentence is relevant to our subject. The simplified form of Article 545 of the Turkish Civil Code has been adopted verbatim. In many judicial decisions and scholarly opinions, this type of rejection is referred to as rejection by operation of law.
While the Turkish Civil Code prescribes a time limit and a unilateral declaration of intent for actual rejection, it does not require any declaration of intent or legal action for the rejection by operation of law to take effect. In other words, the rejection is deemed to occur automatically, and an exception is made to the general rule under Article 599 of the TCC that the inheritance automatically passes to the heirs upon the decedent’s death…”
(Court of Cassation, 3rd Civil Chamber, Case No. 2017/5148 E., 2019/1126 K., 14.02.2019)
Since rejection by operation of law constitutes a legal presumption, heirs do not need to make a declaration of refusal or file a lawsuit for the inheritance to be considered rejected. If the legal conditions are met, the heirs are deemed to have rejected the inheritance without any declaration of refusal. The procedural requirements and conditions for rejection by operation of law are as follows:
1 – The estate must be insolvent:
As of the date of death, all assets of the decedent constitute the estate’s active assets, while all debts constitute the estate’s liabilities. If the liabilities of the estate exceed its assets, this demonstrates the estate’s insolvency and, consequently, that the estate is over-indebted.
The insolvency of the estate can be proven by any type of evidence. However, proving whether the estate is indeed insolvent requires a comprehensive investigation. Therefore, any statements made by the heirs claiming that “the estate is insolvent” must be supported by various objective data such as Social Security Institution (SGK) records, bank records, land registry records, and tax records.
Indeed, in a decision dated 11.04.2018, the General Assembly of the Turkish Judiciary stated that…
“…According to Article 605 of the Turkish Civil Code, the inheritance shall only be considered rejected if, at the time of death, the decedent’s insolvency is clearly evident or officially determined. The existence of insolvency can be established by clearly assessing the assets and liabilities of the decedent as of the date of death. Indeed, this legal presumption arises from the belief that, due to the excess of liabilities over assets in the decedent’s estate being publicly known, legal or appointed heirs would not accept an inheritance that is over-indebted. Therefore, insolvency, or the inability to pay, can be proven by any type of evidence.
Even if the court has sent inquiries to certain offices, the investigations conducted are not sufficient to form a judgment. In such a case, the court is obliged to conduct a comprehensive and objective investigation of the decedent’s estate as of the date of death, including the places where the decedent was registered or resided. This includes inquiries to land registry offices, tax offices, banks, and the Social Security Institution (Bağ-Kur, SSK, Pension Fund) to determine whether any salaries or payments exist, as well as any field investigations. These investigations are necessary to confirm the state of the estate, as they are part of the judge’s duty to clarify the case…”
(Court of Cassation, 2017/438 E., 2018/770 K.)
It was emphasized that the judge must make a comprehensive and detailed investigation as part of their duty to clarify the case when determining the decedent’s insolvency, and the decision should be based on the results of such investigation.
2 – The estate’s assets and liabilities should be determined based on the date of the decedent’s death:
Whether the estate is insolvent is determined by examining the assets and liabilities as of the decedent’s date of death. Debts incurred after the decedent’s death will not be considered in determining the estate’s assets and liabilities and, by themselves, will not give rise to rejection by operation of law.
“…The enforcement files mentioned in the appellants’ petition must be obtained to determine the total liabilities of the decedent as of the date of death. The source of the decedent’s tax debts should be investigated. Furthermore, the decedent had an account with ING Bank A.Ş. The account transactions and balances from the date of death must be obtained and considered in calculating the estate’s assets and liabilities as of the decedent’s date of death. In addition, it should be checked whether the heirs have engaged in acts that would imply acceptance of the estate…” (Court of Cassation 14th Civil Chamber, 2019/22 E., 2019/7395 K., 07.11.2019)
3 – The estate’s insolvency must be clearly established or officially determined:
The mere fact that the estate is insolvent is not sufficient to meet the conditions for rejection by operation of law. Rather, the insolvency must be clearly established or officially determined. A certificate of insolvency or a bankruptcy decision regarding the decedent constitutes proof that the estate is insolvent. Similarly, if the decedent’s insolvency is known to their relatives, close associates, or others in their social or professional circle, it must be accepted that the insolvency of the estate is clearly established.
4 – Heirs must not have explicitly or implicitly accepted the inheritance:
Another important aspect of rejection by operation of law is that the heirs must not have engaged in acts that imply acceptance of the inheritance. Indeed, Article 610 of the Turkish Civil Code states that an heir who interferes with the estate’s administration in ways not part of ordinary management, performs acts beyond what is necessary to manage the decedent’s affairs, conceals estate assets, or appropriates them for themselves cannot reject the inheritance.
Turkish Civil Code, Article 610:
“An heir who does not renounce the inheritance within the legal period is deemed to have unconditionally accepted the inheritance.
An heir who, before the expiration of the renunciation period, interferes with the estate’s administration in ways not considered ordinary management, performs acts beyond what is necessary to manage the decedent’s affairs, conceals estate assets, or appropriates them for themselves, cannot renounce the inheritance.
Filing a lawsuit or initiating compulsory enforcement to prevent the statute of limitations or forfeiture periods from expiring does not eliminate the right of renunciation.”
According to the relevant provision, it is clear that an heir who has conducted transactions in a manner consistent with accepting the inheritance cannot later request the renunciation of the inheritance. However, not every act carried out by heirs can automatically be interpreted as acceptance of the inheritance. As clarified by the decisions of the Court of Cassation, actions taken by heirs after the death of the decedent—such as filing succession and inheritance tax declarations to fulfill legal obligations, paying the decedent’s debts under enforcement pressure, or initiating a determination lawsuit for the estate—cannot be considered as acceptance of the inheritance.
Whether an act carried out by heirs should be regarded as acceptance of the inheritance varies on a case-by-case basis. The key consideration is whether the heir’s actions fall within the ordinary administration of the estate. Acts that fall outside the ordinary administration of the estate will be interpreted as acceptance of the inheritance, and the heir’s right to renounce the inheritance will be extinguished.
Action for Judicial (Deemed) Renunciation of Inheritance
Since judicial (deemed) renunciation is a legal presumption, heirs are not required to make a declaration of renunciation or file a lawsuit for the inheritance to be considered renounced. If the legally required conditions are met, heirs are deemed to have renounced the inheritance without the need to submit a declaration. However, there is a legal benefit in filing a lawsuit to prove that the conditions for judicial renunciation have been met. Indeed, a lawsuit filed for judicial renunciation ensures the determination of the estate and provides assurance that the heirs are not liable to the deceased’s creditors.
The lawsuit for judicial renunciation of inheritance is filed by statutory or appointed heirs against the estate’s creditors. The lawsuit may be directed against any one of the creditors, not necessarily all of them. However, it is not permissible to file the lawsuit without naming the creditors as defendants. If the lawsuit is filed without defendants, the court will grant the plaintiff a period to indicate the estate creditors as defendants.
“…In a judicial renunciation claim, the lawsuit must be filed with the creditors named as defendants. If the court has requested the plaintiffs to direct the lawsuit against the creditors, the evidence of the parties should be collected, evaluated, and a decision made accordingly. Therefore, dismissing the case for lack of proper defendants without fulfilling this legal condition is contrary to procedure and law…” (Court of Cassation, 2nd Civil Chamber, 2007/20154 E., 2009/4738 K., 16.03.2009)
No specific time limit is prescribed for filing the lawsuit. It is always possible for heirs to request the determination of the estate’s insolvency through a declaratory action filed against the creditors.
“…Article 605/1 of the Turkish Civil Code regulates “actual renunciation,” while Article 605/2 regulates “judicial (deemed) renunciation.” According to Article 605/1 of the TCC, an inheritance can only be renounced within three months (TCC Art. 606). “If, at the time of death, the testator’s insolvency is clearly evident or formally determined, the inheritance is considered renounced.” Within this framework, judicial renunciation is not subject to any time limit. Heirs may at any time request, through a declaratory action against creditors, the determination that the estate is insolvent, and in any lawsuit filed against the heirs, the estate’s insolvency may always be asserted as a defense…” (Court of Cassation, 17th Civil Chamber, 2021/3203 E., 2021/3169 K., 23.03.2021)
The burden of proving that the decedent was insolvent lies with the plaintiff. To satisfy the conditions of proof, the decedent’s assets and liabilities must be determined, which requires conducting investigations with relevant institutions such as municipalities, tax offices, banks, land registry and cadastre offices, and other official bodies. As a result of these investigations, the decedent’s assets and liabilities will be established, and it will be clarified whether the estate is insolvent.
COMPETENT AND AUTHORIZED COURT
For these cases, the competent court is the Civil Court of First Instance, and the authorized court is the court of the defendant heir’s residence at the time the case is filed.
Relevant Decisions on the Subject
“…If, at the time of death, it is clearly evident or officially determined that the deceased was insolvent, the inheritance is deemed to be rejected (Turkish Civil Code, Art. 605). The deceased’s insolvency is assessed as of the date of death. As of that date, all assets of the deceased constitute the estate’s assets, and all debts constitute the estate’s liabilities. If the estate’s liabilities exceed its assets, this indicates the estate’s insolvency and, consequently, that the estate is over-indebted (TMK Art. 605/2). However, even if the estate is over-indebted, an heir who interferes with estate matters, conceals estate assets, or appropriates them for themselves, as described in TMK Art. 610/2, cannot reject the inheritance. In the present case, it was determined from the account statement of the … Branch that the plaintiff … conducted account transactions, thereby engaging in acts implying acceptance of the estate, whereas no evidence was found that the other plaintiffs had accepted the estate. Therefore, it was deemed incorrect to dismiss the claims of the plaintiffs other than …, and the judgment needed to be overturned on this basis…” (Court of Cassation, 14th Civil Chamber, 2018/744 E., 2018/6193 K., 01.10.2018).
“…Considering the contents of the file, the case documents, and the trial minutes, and that the court evaluated the existing evidence and found no error in its assessment, although the plaintiffs whose case was dismissed argued that the deceased was insured under Bağ-Kur and had unpaid insurance premiums, and that if these were added to the estate, the estate’s liabilities would exceed its assets, which would be sufficient to justify a judicial rejection of the inheritance; however, the deceased’s Bağ-Kur premium debts are not part of the estate but constitute a liability under the Law of Obligations that must be paid only if an application is made to … by the deceased’s heirs for the assignment of income and benefits due to Bağ-Kur insurance. Since the beneficiaries did not make such an application, it is not possible to demand payment from them. Therefore, the plaintiffs’ request to include the deceased’s heirs’ Bağ-Kur premium debts in the estate’s liabilities was unfounded. As the court has determined through proper investigation that the estate’s assets exceed its liabilities, all appeal objections of the plaintiffs’ attorney are rejected, and the judgment is AFFIRMED as procedurally and legally proper…” (Court of Cassation, 8th Civil Chamber, 2013/19830 E., 2014/21562 K., 24.11.2014).
“…Legal and appointed heirs may renounce the inheritance. If, at the time of death, it is clearly evident or officially determined that the deceased was insolvent, the inheritance is deemed rejected (Turkish Civil Code, Article 605). The insolvency of the deceased is determined as of the date of death. As of the date of death, all assets of the deceased constitute the estate’s assets, and all debts constitute the estate’s liabilities. If the liabilities of the estate exceed its assets, this indicates the estate’s insolvency and, consequently, that the estate is over-indebted (TCC Article 605/2). However, even if the estate is over-indebted, an heir who intervenes in the estate’s transactions, conceals estate assets, or appropriates them for themselves, as described in Article 610/2 of the Turkish Civil Code, cannot renounce the inheritance.
In the specific case, it was determined that one of the plaintiffs, …, conducted account transactions in the branch statement of the deceased, thereby engaging in behavior that adopted the estate. Since there was no evidence that the other plaintiffs adopted the estate, dismissing the claims of all plaintiffs except … was deemed incorrect, and the judgment therefore needed to be overturned…” (Court of Cassation, 14th Civil Chamber, 2018/744 E., 2018/6193 K., 01.10.2018).
“…According to the court, based on the claims, defenses, and the entirety of the case file, the plaintiffs filed this lawsuit against the defendants, who are some of the legal heirs, based on the liability provisions arising from the debts transferred through inheritance. It was understood that one of the defendant-heirs, …, filed a lawsuit at the Edirne 2nd Civil Court of First Instance, claiming that the estate of the deceased …i was insolvent, seeking a judicial determination of rejection against İş Bankası, and that the court ruled in favor of the claim, with the judgment becoming final on 18.01.2013 without appeal.
Legal heirs benefiting from the provisions on rejection of inheritance cannot be held liable for the deceased’s debts. The determination of the estate’s insolvency can be requested either through an independent lawsuit or defended in an ongoing case. In the present case, although the other defendant-heirs, except …, did not file a lawsuit for judicial rejection, the fact that the estate is insolvent should be considered within the defense of rejection. It would also be inequitable to exclude the other heirs of the same deceased from this benefit when some heirs are invoking the rejection provisions. Accordingly, with respect to the estate of the deceased debtor …i, the Edirne 2nd Civil Court of First Instance, in its judgment numbered 2011/311 (file) and 2012/401 (decision), determined that the estate was insolvent, and considering that this decision affects all heirs, it was decided to dismiss the debt claim filed against the heirs of this deceased.
The decision was appealed by the plaintiff’s attorney… and with all appeal objections of the plaintiff’s attorney rejected, the judgment was UPHELD as procedurally and legally proper…” (Court of Cassation, 11th Civil Chamber, 2013/18050 E., 2014/7308 K., 14.04.2014).
“…The Plaintiff Institution argued that the Defendant, being insured under Social Insurance Law No. 506, had been granted a survivor’s pension from 15.02.1991 due to the death of her mother; that the Defendant had Bağ-Kur service between 01.09.1979 and 01.05.1989 and retired on 30.01.1999 based on a pension application; and therefore requested the annulment of the objection to the recovery of undue payments made to the Defendant from the deceased mother’s survivor’s pension.
In the reversal decision applied by the Court, it was stated: ‘In the present case, it is understood from the case file that the Defendant had 1,388 days of insurance under Law No. 506 between 01.08.1957 and 02.01.1962, and 4,109 days of optional insurance as a housewife under Law No. 1479 between 01.09.1979 and 30.01.1991. As the conditions for granting an old-age pension were fulfilled, in accordance with Article 8, first paragraph of Law No. 2829, an old-age pension was granted under Law No. 1479 as of 01.02.1991. Although the Defendant signed a declaration and undertaking at the time of granting the survivor’s pension under Law No. 506 through her mother, committing to immediately notify the Institution if she received any old-age pension under Social Insurance or other relevant laws, the Defendant failed to notify the Institution despite receiving the old-age pension under Law No. 1479, which included mandatory insured working days under Law No. 506. Accordingly, the Defendant is liable to repay the payments made within a ten-year period under Article 96/a of Law No. 5510.’
During the trial after the reversal, following the death of Defendant …, the heirs were joined to the case. Prior to the decision hearing, the attorneys of the joined Defendants stated that they had filed a judicial declaration of rejection of inheritance case, specifying the court and file number, and requested that the outcome be awaited. However, it appears that the court rendered a decision without awaiting the result of the rejection of inheritance case and without conducting an investigation in line with the Defendant’s attorneys’ statement.
The court should have awaited the outcome of the rejection of inheritance case and decided accordingly. In case of the dismissal of the rejection of inheritance case, an enforcement denial compensation should also have been ruled against the Defendants. The fact that the court issued a judgment in writing without considering the explained substantive and legal principles and based on an incomplete investigation constitutes a procedural and legal violation, which is grounds for reversal…’ (Court of Cassation, 10th Civil Chamber, 2017/4339 E., 2017/8085 K., 20.11.2017).
“…A person deemed to have renounced an inheritance by operation of law may, by asserting a claim against the estate creditors, request that this status be recognized, or may raise it as a defense (def’i). In the present case, the heirs chose the defense route in their objection to the enforcement proceedings. In such a situation, the inheritance must be considered as having been renounced. The renunciation of inheritance by operation of law can be proven with all kinds of evidence.
In order for a decision to be made determining that the estate is insolvent, it is necessary to establish the estate’s assets and liabilities as of the date of the decedent’s death, and to show that the liabilities exceed the assets; additionally, the heirs must not have engaged in any legal act implying ownership of the estate. In the present case, according to the letter from the Iğdır Land Registry Office, there is a title deed registered in the name of the decedent. Accordingly, the plaintiff should have been granted a period to appoint a representative for the estate, and the estate should have been liquidated under the bankruptcy provisions in accordance with Articles 605 et seq. of the Turkish Civil Code. Issuing a judgment as written without this process was incorrect and required reversal…” (Court of Cassation, 17th Civil Chamber, 2016/6314 E., 2016/6438 K., 26.05.2016).
“…In the present case, the debtor, …, had died before the lawsuit was filed, and the case was brought against the heirs. The defendant heirs, in their capacity as heirs of the deceased debtor, claimed through a defense (def’i) that they had renounced the inheritance. In this lawsuit, they stated that the decedent’s insolvency was clearly evident. In such a situation, the inheritance must be considered as having been renounced.
From the file contents, it is clear that the decedent had no movable or immovable property, meaning the decedent’s state of insolvency is established. The presumption of insolvency has been confirmed in the present case and has not been disproven by the plaintiff. (See also General Assembly of Civil Chambers decisions dated 14.03.2001, 2001/2-220 E., 240 K.; 2008/4-332 E., 2008/336 K.) No action for objection can be brought against heirs who have renounced the inheritance. Party formation is a prerequisite for the lawsuit to be heard and must be considered ex officio. Moreover, if proper party formation is not ensured, it is not possible to address the merits of the case.
As stated in the General Assembly of Civil Chambers decision dated 03.07.2002, 15/572-577, in order to ensure proper party formation, the estate renounced by all closest legal heirs, as indicated in Article 612 of the Turkish Civil Code, should be liquidated under the bankruptcy provisions by the Peace Court. The legal procedure for this liquidation must be completed, and after the liquidation, a representative appointed and authorized for the heir who renounced the inheritance must participate in the case, and all evidence must be collected and evaluated before a judgment is rendered. Issuing a judgment as written without observing this process is contrary to procedure and law and constitutes grounds for reversal…” (Court of Cassation, 17th Civil Chamber, 2015/12195 E., 2018/87 K., 16.01.2018).
Lawyer. Gökhan AKGÜL & Lawyer. Yasemin ERAK
