Inheritance law constitutes one of the most sensitive and legally complex areas of family relations. While the Turkish Civil Code recognizes the testator’s freedom to dispose of their estate as they see fit, it has also established a balancing mechanism to protect certain heirs. The concept of the reserved share forms the foundation of this mechanism. From a legal advisory perspective, it is of great importance for heirs to be aware of these rights and to take timely action against any potential attempts to defraud them of their inheritance.
What Is a Reserved Share and Who Is Covered by It?
A reserved share is a portion of the estate protected by law that the decedent cannot dispose of through testamentary dispositions or certain inter vivos transfers made during their lifetime. Under Turkish law, only certain individuals are recognized as holders of a reserved share: descendants, parents, and the surviving spouse. Siblings do not have a reserved share; following an amendment in 2007, siblings were removed from the status of heirs entitled to a reserved share.
The proportions of the reserved share are clearly defined by law. The reserved share of descendants is half of the statutory inheritance share. The reserved share of each parent is one-fourth of the statutory share of the estate. The situation for the surviving spouse varies depending on the class of heirs with whom they inherit: when inheriting alongside descendants or parents, the entire statutory share constitutes the reserved share; when inheriting alongside the third class of heirs, three-fourths of the statutory share is protected as the reserved share.
The Testator’s Discretionary Disposition
Against Asset Diversion from an Estate: The “Decedent’s Fraudulent Conveyance” Case
In practice, the most common method of asset diversion is the “decedent’s fraudulent conveyance.” In this scenario, the decedent transfers real property which they actually intended to donate by registering it as a sale in the land registry, thereby attempting to prevent other heirs from accessing their reserved shares.
The Supreme Court’s Decision on the Unification of Judicial Precedents No. 1/2, dated April 1, 1974, provides a very important safeguard in this regard. According to this decision, all heirs whose inheritance rights have been violated—whether or not they hold a reserved share may file a lawsuit to have the land registry entry canceled on the grounds of a fraudulent conveyance by the decedent. As a result of this lawsuit, the apparent sale is deemed invalid due to fraudulent conveyance, and the real property reverts to the decedent’s estate. An important distinction exists here: Since the real property reverts directly to the estate in a fraudulent conveyance lawsuit, there is no need to file a separate action for reduction of the estate.
Burden of Proof in a Deceased’s Fraudulent Conveyance Lawsuit
The most critical issue in deceased’s fraudulent conveyance lawsuits is the burden of proof. The heir alleging that the transaction was fraudulent must prove it. However, since the heirs are acting not as successors to the decedent but as third parties whose inheritance rights have been violated, they may prove their claims with any type of evidence, including witness testimony. The Court of Cassation evaluates the following factors in determining fraud: the amount of assets remaining in the decedent’s estate; the ratio of the transferred property to the total estate; the difference between the sale price and the actual value; whether the decedent had a need for the sale; and who used the real property after the transfer.
The Difference Between a Reduction Action and an Action for Fraudulent Conveyance by the Deceased
There are two primary legal remedies available to heirs: a reduction action and an action for fraudulent conveyance by the deceased. A reduction action is filed when the decedent exceeds the reserved shares through a valid testamentary disposition or an inter vivos gratuitous transfer. The purpose of this action is to ensure that the excess portion is reduced. A decedent’s fraudulent conveyance action, on the other hand, is based on the claim that the apparent nature of the transaction does not reflect the true intent and aims to establish the invalidity of the transaction and the cancellation of the title deed.
In inheritance law, the reserved share is a fundamental institution that strikes a balance between the decedent’s freedom of disposition and the heirs’ right to protection. It is critically important for heirs to scrutinize the nature of transfers made by the decedent during their lifetime and to seek legal counsel in suspicious cases to prevent the loss of their rights. While the ability to prove fraud by the decedent through witness testimony offers a significant advantage in such cases, each specific case must be evaluated within the context of its unique circumstances.
For detailed information on this matter and a personalized legal assessment, please contact the expert team at Bu Müşavirlik. We are here to support you in protecting your rights regarding estate distribution and reserved shares.
