How to Obtain a Declaration of Absence in Turkey?

How to Obtain a Declaration of Absence?

What is a Declaration of Absence?

A declaration of absence is a court decision that legally considers a person dead when they have disappeared in life-threatening circumstances or have not been heard from for a long time. This decision is made to clarify the legal status of the missing person and protect the rights of those left behind in the Turkish legal system.

Necessary Conditions for a Declaration of Absence

To obtain a declaration of absence, certain conditions must be met:

1 – There must be a disappearance in life-threatening circumstances or a long period without news.

2 – There must be a strong probability regarding the person’s death.

3 – The waiting periods specified by law must have passed.

4 – An application must be made to the court by those whose rights depend on this death.

Disappearance in Life-Threatening Circumstances

Disappearance in life-threatening circumstances refers to a person vanishing in a situation where the probability of losing their life is high. For example:

– Passengers lost in a ship or plane crash

– People missing in natural disasters such as earthquakes or floods

– Civilians or soldiers missing in war or conflict zones

In these cases, it is clear that the person is in mortal danger, and the waiting period for a declaration of absence is shorter in Turkey.

Long Period Without News

A declaration of absence can also be requested if there has been no news from the person for a long time. However, in this case, it is not enough to just not know where the person is. There must also be strong suspicions that the person is not alive.

Point to note: It is not sufficient for a declaration of absence if the person has voluntarily cut off communication or simply changed their address. For example, a declaration of absence cannot be immediately obtained for a person who has left home and cut off communication due to family disagreements.

Waiting Periods

According to the Turkish Civil Code, the waiting periods for a declaration of absence are as follows:

• In case of disappearance in life-threatening circumstances: At least 1 year
• In case of no news for a long time: At least 5 years

These periods start from the date of the event or the last news received.

Exception: Different periods apply if the Treasury requests a declaration of absence. If the person’s assets or inheritance share has been officially managed for 10 years or if the person has turned 100 years old, the Treasury can request a declaration of absence.

People Who Can Apply

Those who can apply to the court for a declaration of absence are defined as “those whose rights depend on this death”. These are:

1 – The spouse of the missing person

2 – Legal and appointed heirs

3 – Persons to whom property has been left by will

4 – Limited real right holders (e.g., usufruct right) in favor of the missing person

5 – Executor of the will

6 – In some cases, creditors and guardians

Important note: The right to apply for a declaration of absence is limited to the people listed above. For example, a close friend or business partner of the missing person cannot directly apply for a declaration of absence.

Competent and Authorized Court

The court to which the application for a declaration of absence should be made is:

• The court of the person’s last domicile in Turkey
• If they never resided in Turkey, the court of the place where they are registered in the population registry
• If there is no population registration, the court of the place where their mother or father is registered

The authorized court is the Civil Court of Peace.

 

Steps to Obtain a Declaration of Absence

1 – Application: Those whose rights depend on the death apply to the competent court for a declaration of absence.

2 – Announcement Process: The court publishes an announcement inviting those who have information about the missing person. This announcement is made at least twice, with at least 6 months between the two announcements.

3 – Waiting Period: A minimum of 6 months is waited from the date of the first announcement.

4 – Evaluation: At the end of the announcement period, the court evaluates the collected information.

5 – Decision: If the missing person does not appear or no information about their life is received, the court issues a declaration of absence.

6 – Registration: The declaration of absence is notified by the court to the population registry office within 10 days and is recorded in the person’s population registry.

Complete Application of the Announcement Procedure

The announcement procedure to be carried out by the court during the process of obtaining a declaration of absence is of great importance. Proper execution of these announcements and adherence to the above-mentioned periods are critical for the validity of the decision.

It is recommended that the announcements be published in nationally circulating newspapers or the Official Gazette. Additionally, it may be beneficial to make an announcement in the place where the last known address of the person whose absence is requested is located.

The announcement text should clearly state the identity information of the person whose absence is requested, the date and conditions of disappearance, the identity of the person requesting the absence, and the reason for the request. It should also emphasize that those who have information about the person should apply to the court within the specified period.

Consequences of the Declaration of Absence

• Personality Ends: The missing person is legally considered dead, and their personality ends.
• Inheritance Opens: The inheritance of the absent person passes to their heirs. However, the heirs must provide security before receiving the property.
• Marriage Does Not Automatically End: The spouse of the missing person must separately request the annulment of the marriage.
• Custody and Guardianship: A new guardian is appointed for children under the custody of the missing person. If the missing person is a guardian, their guardianship duty ends.

Important note: The declaration of absence has retroactive effect. That is, it takes effect from the day the life-threatening situation occurred or the last news was received.

Obligation to Provide Security

The heirs of the missing person must provide security that they will return the inherited property to potential superior right holders or to the missing person themselves if they appear before receiving the estate property.

Security period:

• In case of life-threatening situation: 5 years
• In case of no news for a long time: 15 years
• In any case, up to when the missing person would turn 100 years old

Exception: In case of a declaration of absence upon the request of the Treasury, unlike the normal absence procedure, the Treasury is not obliged to provide security. However, if the missing person or superior right holders appear, the Treasury is obliged to return the property.

Retroactive Effect of the Declaration of Absence

An important feature of the declaration of absence is that the decision has retroactive effect. The decision takes effect from the day the life-threatening situation occurred or the last news was received. This situation has important consequences, especially in terms of inheritance law.

For example, even if a declaration of absence is obtained for a person in 2024, if the date of last news is 2019, it is accepted that the person is considered to have died in 2019. In this case, inheritance events that occurred between 2019-2024 may also be affected by this situation.

Therefore, when obtaining a declaration of absence, the date on which the decision will have retroactive effect should be clearly determined and explicitly stated in the decision text.

Cancellation of the Declaration of Absence

If the missing person appears or it is definitively understood that they are alive, the declaration of absence is canceled. In this case:

• The personality of the missing person is regained.
• The heirs are obliged to return the property they received.
• If the spouse of the missing person has requested the annulment of the marriage, a new marriage is necessary.

Point to note: There is no time limit for the missing person to reclaim their property when they appear. However, if the heirs are in good faith, they are not obliged to return the income they have obtained.

Differences Between Declaration of Absence and Presumption of Death

Declaration of absence and presumption of death are two frequently confused concepts. However, there are important differences between them:

Certainty: In the presumption of death, the person is definitely considered dead, while in the declaration of absence, there is a strong probability.

Court Decision: A court decision is required for a declaration of absence, but not for a presumption of death.

Marriage: In the presumption of death, the marriage ends automatically, while in the declaration of absence, a separate lawsuit must be filed for the annulment of the marriage.

Return: When a missing person returns, they can reclaim their property, while in the presumption of death, if the person returns, they can file an unjust enrichment lawsuit.

Example: If it is definitely known that all passengers died as a result of a plane crash, the presumption of death applies. However, if a mountaineer gets lost during a climb and no news is received for a long time, a declaration of absence can be obtained.

Common Mistakes When Obtaining a Declaration of Absence

Not Complying with Periods: Requesting a declaration of absence without complying with the waiting periods specified in the law.

Unauthorized Application: People whose rights are not dependent on death applying for a declaration of absence.

Neglecting the Announcement Process: The court not making the necessary announcements or not complying with the announcement periods.

Not Conducting Sufficient Research: Making a decision without sufficiently investigating whether the missing person is really missing.

Not Providing Security: Heirs trying to receive estate property without providing the necessary security.

Consequences of the Declaration of Absence in Terms of Inheritance Law

1. Opening of the Inheritance

With the issuance of the declaration of absence, the inheritance of the missing person is considered to be opened. However, the important point here is that the date of the opening of the inheritance is not the date when the declaration of absence is issued, but the date when the life-threatening situation occurred or the last news was received.

This situation is important in terms of determining the heirs. Heirs are determined according to the situation at the date when the inheritance is opened. For example, even if the declaration of absence is issued in 2023, if the date of last news is 2018, the heirs who were alive in 2018 are taken into account.

2. Heirs’ Obligation to Provide Security

After the declaration of absence, the heirs need to provide security in order to receive the inheritance. The purpose of this security is to ensure that the property can be returned if the missing person later appears or superior right holder heirs emerge.

The court has discretion regarding the type and amount of security. The security can be in the form of cash, bank guarantee letter, mortgage, or surety. The duration of the security is 5 years in case of life-threatening situation, and 15 years in case of no news for a long time. However, in any case, this period cannot exceed the date when the missing person would turn 100 years old.

3. The Case of the Missing Person Being an Heir

The missing person themselves may also be an heir to someone else. In this case, there are two possibilities:

Inheritance falling to a missing person about whom a declaration of absence has not yet been issued: In this case, the missing person’s inheritance share is officially managed by the court.

Inheritance falling to a person about whom a declaration of absence has been issued: In this case, the heirs of the missing person or those who will be heirs instead of the missing person can claim this inheritance without obtaining a separate declaration of absence.

4. Return of the Inheritance

If the missing person appears after the declaration of absence or if the date of death is definitively determined, those who received the inheritance are obliged to return it. The scope of the obligation to return depends on whether those who received the inheritance are in good faith or not.

Heirs in good faith are obliged to return the current state of the property. They are not obliged to return the products they have obtained from the property. However, heirs in bad faith are obliged to return not only the property but also the products they have obtained or neglected to obtain from this property.

Conclusion

When obtaining a declaration of absence, all these issues should be taken into consideration and each case should be evaluated within its own special circumstances. In this process, seeking legal assistance and consulting expert lawyers is of great importance in terms of preventing possible mistakes and protecting the rights of individuals.

 

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