September 13, 2024

Is the Declaration of Absence Retroactive in Turkish Law?

The retroactive effect of the declaration of absence has significant consequences in terms of inheritance law. According to Article 35, paragraph 2 of the Turkish Civil Code (TMK), the declaration of absence takes effect from the day the danger of death occurred or the last news was received. This provision clearly demonstrates that the declaration of absence has a retroactive effect. Therefore, the declaration of absence takes effect not from the moment it is issued, but from the day the danger of death occurred or the last news was received. The main purpose of this regulation is to eliminate the legal uncertainty created by the state of absence and to clarify the legal relationships of the absentee.

One of the most important consequences of the retroactive effect of the declaration of absence is determining the moment of the opening of the inheritance. According to TMK Article 584, the heirs of the person declared absent or those entitled to their inheritance must provide security that they will return the estate property to potential superior right holders or to the absentee themselves before the property is handed over to them. This regulation is a result of the retroactive effect of the declaration of absence. Because the inheritance is considered to have opened not on the date the declaration of absence was issued, but on the date the danger of death occurred or the last news was received. However, the obligation to provide security is a precaution against the possibility of the absentee or superior right holders appearing later.

The retroactive effect of the declaration of absence is also important in terms of determining the heirs of the absentee. In a decision of the Turkish Court of Cassation, it was ruled that “(…) due to the retroactive effect of the declaration of absence, the inheritance of the absentee will be considered to have opened not on the date the declaration of absence was issued, but at the moment of the event carrying the danger of death in case of disappearance in danger of death; in case of not receiving news for a long time, it will be considered to have opened on the date of the last news (…)” emphasizing that the declaration of absence has a retroactive effect in determining the heirs. Therefore, who the heirs are, the disposable portion of the estate, and the reserved shares are determined not according to the date the declaration of absence was issued, but according to the date of the danger of death or the date of the last news.

The retroactive effect of the declaration of absence also affects the absentee’s status as an heir. According to TMK Article 586, the inheritance share of a person declared absent is officially managed. However, in this case, whether the absentee can be an heir or not is determined based on whether the date of death of the testator corresponds to a date before or after the date the declaration of absence takes effect. If the testator died before the date the absentee was in danger of death or the date of the last news received from them, the absentee has the status of an heir and the distribution of inheritance is made considering their existence. Otherwise, the absentee cannot be an heir.

The retroactive effect of the declaration of absence also brings with it the obligation to return in case the absentee or superior right holders appear later. According to TMK Article 585, if the absentee appears or those claiming to be superior right holders prove their status, those who have received the estate property are obliged to return the property they received in accordance with the rules of possession. This return obligation differs depending on whether those holding the estate are in good faith or not. The return obligation of those in good faith is subject to the statute of limitations regarding the inheritance claim. However, no statute of limitations is foreseen for those in bad faith.

In conclusion, the retroactive effect of the declaration of absence in the Turkish legal system has important consequences in terms of inheritance law. This situation plays a decisive role in issues such as determining the moment of the opening of the inheritance, identifying the heirs, the absentee’s status as an heir, and the obligation to return. However, the retroactive effect of the declaration of absence also necessitates taking some precautions, such as the obligation to provide security against the possibility of the absentee or superior right holders appearing later.

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