Equalization Lawsuit in Turkish Inheritance Law

WHAT IS BALANCING IN INHERITANCE?

Balancing in inheritance refers to the inclusion of some gifts made by the deceased to their legal heirs during their lifetime into the estate, which is not limited to the assets available at the time of death. This institution aims to maintain equality among heirs by considering some of these gifts in the estate, especially if some heirs are in a more advantageous economic position than others. The belief that the deceased loved each of their descendants equally and did not intend to treat them unjustly forms the foundation of the balancing institution in inheritance. Considering the preservation of the deceased’s will, it is possible that they might have wanted to leave more assets to some legal heirs without harming the compulsory shares of the other heirs within the limits of their freedom of disposition. The necessary conditions for such gifts not to be subject to balancing in inheritance are detailed below.

The obligation to balance is presumed to exist among the descendants, whereas for other legal heirs, it depends on the clear intention of the deceased that the gift should be subject to balancing. Legal heirs who have received inter vivos gifts from the deceased in lieu of their inheritance shares are obliged to return these gifts to the estate, either in kind or by deducting the value of the gifts from the heir’s share if the gift is no longer available. Gifts made by the deceased to their descendants, such as dowry or establishment capital, or the transfer of an asset or the release from a debt, are considered subject to balancing unless explicitly stated otherwise by the deceased.

LEGAL BALANCING IN INHERITANCE

As mentioned above, the obligation to balance is regulated differently for the descendants and other legal heirs of the deceased. Gifts made by the deceased to their descendants, such as dowry or establishment capital, or the transfer of an asset or the release from a debt, are considered subject to balancing unless explicitly stated otherwise by the deceased. The legal obligation to balance, referred to here, originates from the law. The exception to this legal obligation, which is based on the belief that the deceased loved all their descendants equally, is if the deceased explicitly exempted the gift from balancing.

VOLUNTARY BALANCING IN INHERITANCE

The deceased’s other legal heirs, apart from the descendants, are not bound by a rule of balancing obligation. This result stems from the different levels of affection that the deceased had towards their descendants compared to other legal heirs. If the deceased made an inter vivos gift to other legal heirs, it is believed to be entirely voluntary. If the deceased did not act with such an intention, then a balancing obligation would only exist if there is a clear declaration of intent. Voluntary balancing refers to the situation where the deceased subjected gifts to other legal heirs to balancing.

DIFFERENCE BETWEEN REDUCTION AND BALANCING IN INHERITANCE

Balancing in inheritance refers to the obligation to return inter vivos gifts received by legal heirs from the deceased in lieu of their inheritance shares to the estate to ensure equality.

Reduction, on the other hand, relates to the demand to reduce the value of gifts made by the deceased exceeding the disposable portion of the estate, thereby interfering with the compulsory shares of the compulsory heirs, either through bequests or inter vivos gifts.

For more details on the reduction lawsuit, you can access our article here.

CONDITIONS FOR BALANCING IN INHERITANCE

The Deceased Must Have Made an Inter Vivos Gift

A gift subject to balancing in inheritance is possible only if it is an inter vivos gift made by the deceased. Inter vivos gifts refer to gifts whose effects and consequences occur while the donor is alive. These gifts are commonly made in the form of donations.

In the case of dispositions mortis causa, such as bequests or donations upon death, even if they were made while the deceased was alive, the asset remains part of the estate and does not result in a transfer of ownership or the establishment of a real right until the death of the deceased. Such transactions are not subject to the obligation of balancing. If the conditions are met, a reduction lawsuit may come into play.

Must Be a Gift Without Consideration

Transactions where a person provides a property benefit to another person are called beneficial transactions. This benefit can be provided by increasing the active assets or decreasing the passive assets of the beneficiary. Increasing the active assets can be achieved by transferring ownership or establishing a limited real right, while decreasing the passive assets can be done by releasing from a debt.

A gift subject to balancing must be made without consideration. As a result of the gift, the deceased’s active assets must have decreased without receiving any consideration. Examples of such gifts include donations, dowries, establishment capital, and debt releases.

Gift Must Be Made to a Legal Heir

Balancing in inheritance can only be applied to gifts made by the deceased to their legal heirs without consideration. Appointed heirs and legatees, who are testamentary heirs, are not subject to the obligation of balancing.

Gift Must Be Made in Lieu of Inheritance Share

A gift subject to balancing must be made in lieu of the legal heir’s inheritance share. To understand this, the intention of the deceased is taken into account. If the deceased expressed the intention that the gift is subject to balancing, it will be considered as made in lieu of the inheritance share. It is not important whether the recipient was a legal heir at the time of the gift; it is sufficient that the recipient is a legal heir at the time of the deceased’s death. The details explained in the distinction between legal balancing and voluntary balancing are taken into account when determining the deceased’s intention.

Gift Must Be Made from the Deceased’s Assets

A gift subject to balancing must be made from the deceased’s assets, reducing the value of the estate, to avoid infringing the rights of other heirs.

GIFTS SUBJECT TO BALANCING IN INHERITANCE

The gifts listed below are those explicitly mentioned by law and are not limited to these. Other similar gifts may also be considered within this scope.

Dowry

Dowry refers to gifts made by the deceased to support and facilitate the life of a descendant and their spouse, such as providing money for marriage, a shared residence, or household goods.

Establishment Capital

Establishment capital refers to money or assets that can be converted into money necessary to ensure the continuity of an economic entity. For example, monetary assistance or providing a business place for a descendant would be considered establishment capital. The criterion here is that the gift aims to help the descendant achieve economic independence, continue, and improve it.

Transfer of Assets

Assets include both active and passive elements. If a transfer includes passive elements, the value obtained by deducting debts from the gift will be subject to balancing.

Release from Debt

The deceased can release a descendant from a monetary debt or an obligation to perform or provide something.

Education and Training Expenses

The obligation to return for education and training expenses only exists for the part that exceeds customary measures, unless the deceased expressed a different wish.

Children who have not completed their education and training or who are disabled will be given an equitable payment during the division. If the deceased did not make such a gift during their lifetime, a reverse balancing will take place, and the unmade expenses will be paid from the estate.

Gifts and Marriage Expenses

Ordinary gifts and customary marriage expenses are not subject to balancing in inheritance. The presumption is that the desire not to subject ordinary dowry expenses made for the marriages of descendants to balancing exists. Whether the gift exceeds ordinary amounts will be determined based on the economic situation of the deceased.

INHERITANCE BALANCING LAWSUIT

Although balancing in inheritance is regulated by law, the provisions regarding the balancing lawsuit have not been written by the legislator.

PARTIES TO THE INHERITANCE BALANCING LAWSUIT

Legal heirs are obliged to return inter vivos gifts received from the deceased in lieu of their inheritance shares to the estate to ensure balancing among themselves. Therefore, the balancing request will be made by some heirs against other heirs who are the balancing debtors. The parties to the inheritance balancing lawsuit are the balancing debtor and the balancing creditor.

Thus, balancing is possible only if there is more than one legal heir. To be a party to balancing, one must be a legal heir at the time of the deceased’s death and not have lost their status due to disinheritance, deprivation of inheritance, renunciation of inheritance, or rejection of inheritance. Those with legal usufruct rights cannot be parties to balancing.

Descendants

As explained above, descendants are subject to a legal obligation to balance unless explicitly stated otherwise by the deceased. This includes the deceased’s children, grandchildren, and their children. All descendants who have the status of legal heirs are subject to the

balancing obligation.

Other Legal Heirs Outside of Descendants

For other legal heirs outside of descendants to be subject to balancing, the deceased must have explicitly included the gift in the scope of balancing. Balancing debtors who are other legal heirs include the surviving spouse, second-degree heirs such as parents and siblings, and third-degree heirs such as grandparents, uncles, aunts, and cousins.

BURDEN OF PROOF IN THE INHERITANCE BALANCING LAWSUIT

If there is a balancing claim for descendants, the burden of proof lies on the descendant who received the gift to prove that the gift is not subject to balancing, as there is a presumption that the gift was made in lieu of the inheritance share and subject to balancing.

For other legal heirs outside of descendants, the burden of proof lies on the heir claiming that the gift is subject to balancing, as it is an exception.

COMPETENT AND AUTHORIZED COURT FOR THE INHERITANCE BALANCING LAWSUIT

Regardless of the value or amount of the subject matter, the competent court for property rights and personal rights lawsuits, unless otherwise regulated, is the civil court of general jurisdiction. Since there is no special court for balancing lawsuits, the general jurisdiction civil courts are considered competent.

Inheritance balancing lawsuits are related to the division of inheritance, and the competent court is the court of the last place of residence of the deceased, following the rule that lawsuits related to the annulment or reduction of the deceased’s dispositions, division of inheritance, and inheritance-related lawsuits will be heard in the court of the last place of residence of the deceased.

STATUTE OF LIMITATIONS FOR THE INHERITANCE BALANCING LAWSUIT

The statute of limitations for the inheritance balancing lawsuit does not start until the inheritance is divided. There is a ten-year statute of limitations from the date the division becomes final.

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