Mutual Renunciation of Inheritance Agreement in Turkish Law

What is a Renunciation of Inheritance Agreement?

A renunciation of inheritance agreement is a contract between the testator and a potential heir. This agreement involves partially or completely relinquishing the right to inherit.

Unlike other inheritance agreements, a renunciation of inheritance agreement aims to eliminate a potential inheritance right and is therefore referred to as a negative inheritance agreement.

This agreement is made before the inheritance is opened and is different from the renunciation of inheritance.

Reserved Share Heir and Renunciation of Inheritance

A renunciation of inheritance agreement made with a reserved share heir can be effective in partially or completely eliminating the inheritance right or interfering with the reserved share right.

However, aside from these situations, the testator can achieve similar results with a will or inheritance agreement, making a renunciation of inheritance agreement unnecessary.

Therefore, a renunciation of inheritance agreement has significant legal function only when made with a reserved share heir. In other cases, there is no obstacle to making it.

Distinction Between Consideration and Non-Consideration Renunciation

A potential heir may receive or not receive compensation in exchange for renouncing their inheritance right (Turkish Civil Code Article 528/1).

If no compensation is received, the renunciation is considered non-consideration, while if compensation is received, it is considered consideration.

In a consideration renunciation, the potential heir “sells” their inheritance share because they renounced their inheritance right. In this case, the potential heir quickly receives compensation by renouncing their expected inheritance right.

Inheritance Status of Descendants in Consideration Renunciation

A renunciation agreement takes effect upon the testator’s death. If the renunciation is complete, the person renouncing loses their inheritance right and heir status (Turkish Civil Code Article 528/2).

Whether the renunciation is for consideration or not does not change the outcome. However, in the case of a consideration renunciation, unless otherwise specified in the agreement, the renunciation also affects the descendants of the person renouncing (Turkish Civil Code Article 528/3).

In other words, the renunciation agreement prevents the descendants’ inheritance right and heir status. In consideration renunciation, the person renouncing immediately receives compensation or becomes a creditor.

Effect of Inheritance Share Liquidation on Estate Creditors

A consideration renunciation of inheritance agreement allows the liquidation of the renouncing heir’s share during the testator’s lifetime.

However, this may harm estate creditors, especially if the estate debts cannot be paid when the inheritance is opened, leading to an unfair situation. If a consideration renunciation agreement had not been made, the value of the estate would still be present and could be used to cover debts.

Furthermore, if the renunciation agreement had not been made, the person renouncing or their descendants would likely become heirs and be responsible for estate debts.

However, with a consideration renunciation agreement, the person renouncing removes their heir status, avoiding responsibility for estate debts and gaining some benefit from the inheritance.

Recognizing this situation, the legislator grants estate creditors the right to claim from the person renouncing and their heirs under certain conditions.

Responsibility of the Person Renouncing for Debts:

According to Article 530 of the Turkish Civil Code, which regulates the rights of estate creditors, if the estate debts cannot be paid at the time the inheritance is opened and the heirs do not pay the debts, the person renouncing the inheritance is responsible to the extent of the compensation they received and the increase they gained at the time the inheritance was opened.

For Article 530 of the Turkish Civil Code to be applied, the consideration renunciation of inheritance agreement must be valid.

If the agreement does not produce effects, the renunciation does not occur, and the person renouncing retains their heir status and thus continues to be responsible for estate debts, including their personal assets.

In this case, the conditions for estate creditors to make claims based on Article 530 of the Turkish Civil Code will not be met.

Additionally, for estate creditors to make claims based on Article 530 of the Turkish Civil Code, the renunciation must be complete. In partial renunciation, the heir’s responsibility continues, and this provision does not apply. Therefore, Article 530 of the Turkish Civil Code is only valid in cases of complete renunciation.

For Article 530 of the Turkish Civil Code to be applied, it is not necessary for the parties to the consideration renunciation of inheritance agreement to act in bad faith.

This provision states that estate creditors have the right to claim based on Article 530 of the Turkish Civil Code, regardless of whether the testator and/or potential heir acted with the intention to harm creditors when making the consideration renunciation agreement.

If the Estate Debts Cannot Be Covered

For estate creditors to make claims against the person renouncing the inheritance and their heirs, the first condition is that the estate cannot cover its debts at the time the inheritance is opened.

In this case, the estate’s inability to cover its debts justifies the claim against the person who renounced their heir status through a renunciation agreement.

Article 530 of the Turkish Civil Code states this condition as “If the estate cannot cover its debts at the time the inheritance is opened.” Therefore, whether the testator’s assets can cover the debts must be determined based on the situation at the time the inheritance is opened.

For example, even if the testator’s assets were in very good condition at the time the consideration renunciation agreement was made, if the estate cannot cover its debts when the inheritance is opened, creditors can claim based on Article 530 of the Turkish Civil Code.

However, the estate’s inability to cover its debts should not be a temporary situation; it should exceed the period that creditors can tolerate.

How this condition should be understood is important. In the doctrine, there is a dominant view that the expression “If the estate cannot cover its debts at the time the inheritance is opened” should be narrowly interpreted and refers to the situation where the estate’s liabilities exceed its assets. However, some authors argue that it is not necessary for the estate to be insolvent for Article 530 of the Turkish Civil Code to be applied and that it is sufficient if the debts cannot be covered from the estate for any reason.

If the Estate Debts Are Not Paid by the Heirs

Another condition for estate creditors to make claims against the person who renounced the inheritance and their heirs is that the estate debts are not paid by the heirs.

If the testator’s debts are being covered by the estate’s assets or by the heirs, the justification for estate creditors to claim against the person who renounced their heir status no longer exists.

Considering that this responsibility is secondary, for this responsibility to arise, the debts that cannot be covered from the estate must also not be paid by the heirs.

Since there is no distinction in the law, the term heirs is accepted to include both legal heirs and appointed heirs. Even if a person other than the heirs pays these debts, creditors cannot claim against the person who renounced and their heirs.

Five-Year Period in Inheritance Liquidation

Another condition for estate creditors to make claims against the person who renounced the inheritance and their heirs is that a gain must have been made to these persons within the five years preceding the testator’s death as part of the consideration renunciation agreement.

This gain, although usually seen in the form of a transfer of immovable property to the person renouncing, can be any kind of gain related to assets.

Although not specified in the law, the gain must be made by the testator. Additionally, if the gain is made by a third party and does not result in a decrease in the testator’s assets, estate creditors cannot claim against the person renouncing and their heirs.

For Article 530 of the Turkish Civil Code to be applied, the consideration must have been realized within the five years preceding the testator’s death.

The purpose of this condition is to maintain the cause-and-effect relationship between the consideration exiting the testator’s assets and the estate’s inability to cover its debts. Although the article states “within five years before death,” this period should be understood as five years before the inheritance is opened.

In calculating the five-year period specified in the regulation, the date the person renouncing received the consideration should be considered.

Therefore, the date the consideration is concretely received is accepted as the starting point of the five-year period. Other dates, such as the date the renunciation agreement was made or the date the consideration should have been given, should not be considered.

If the consideration was given continuously or periodically, the condition of gaining within the five years before the inheritance was opened is sufficient for the application of Article 530 of the Turkish Civil Code.

In this case, while determining the responsibility of the person renouncing and their heirs, only the portion received within the five years should be considered, not the entire consideration.

If no consideration has been received within the five years before the inheritance was opened, despite the consideration renunciation agreement, estate creditors cannot make claims based on Article 530 of the Turkish Civil Code. Therefore, even if a consideration received more than five years ago is still present, the same result should be reached.

Claim Right of Heirs of the Person Renouncing the Inheritance

Article 530 of the Turkish Civil Code grants estate creditors the right to claim against the heirs of the person who renounced the inheritance for consideration.

However, the birth of this claim right depends on the inheritance of the person who renounced being opened and their heirs being determined. Therefore, the responsibility of the heirs of the person who renounced the inheritance for consideration to the estate creditors can be considered secondary compared to the person renouncing.

If the conditions stipulated in Article 530 of the Turkish Civil Code are met, estate creditors have the right to claim only the enrichment created by the person renouncing and their heirs at the time the inheritance is opened.

However, regardless of the nature of the consideration given in return for the renunciation, estate creditors can only demand a certain amount of money to be paid.

Since it is not possible for the person renouncing to regain heir status through the cancellation of the renunciation agreement, even if the conditions stipulated in Article 530 of the Turkish Civil Code are met, it does not lead to the full responsibility of the person renouncing and their heirs for estate debts with all their personal assets.

Article 530 of the Turkish Civil Code does not explicitly address the issue of the right to claim the expenses made by the person renouncing and their heirs for the consideration received.

However, when determining the scope of responsibility, the provisions on unjust enrichment should be considered, and the expenses made for the consideration received should be taken into account under Article 80 of the Turkish Code of Obligations.

Thus, the person renouncing and their heirs can claim the expenses made for the consideration given in return for the renunciation, regardless of whether they acted in good faith or bad faith, under Article 80 of the Turkish Code of Obligations.

Statute of Limitations for Claims and Different Views

There are various views in the doctrine regarding the statute of limitations for estate creditors’ claims based on Article 530 of the Turkish Civil Code against the person who renounced the inheritance for consideration and their heirs.

Among the possibilities discussed are the statute of limitations for unjust enrichment claims, the statute of limitations for the claim itself, or the general ten-year statute of limitations from the opening of the inheritance.

Some authors argue that since this is a case of unjust enrichment, estate creditors should assert their claims within the statute of limitations for unjust enrichment.

Sample Court Decisions

---

The case is related to the annulment of the consideration renunciation of inheritance agreement based on the reason for invalidity.

The consideration renunciation of inheritance agreement was made in accordance with its legal form (Article 545 of the Turkish Civil Code) between a married couple; in the agreement, the wife (the defendant’s testator) agreed to renounce all her inheritance rights in exchange for three apartments registered in the husband’s name (the plaintiff’s testator).

After the agreement was made, the person renouncing died before the testator (on 02.04.2009), and later the testator died (on 09.12.2009).

The plaintiffs are the children from the testator’s first marriage, and there is no common child between the contracting couple.

The plaintiffs filed an annulment lawsuit, claiming that the renunciation agreement became void automatically under Article 548 of the Turkish Civil Code because the person renouncing died before the testator.

The court accepted the lawsuit and annulled the renunciation of inheritance agreement; the defendants appealed this decision on the grounds that the lawsuit should have been dismissed.

A renunciation of inheritance agreement is considered a negative inheritance agreement and can be either consideration or non-consideration (Article 528 of the Turkish Civil Code).

In a consideration renunciation of inheritance agreement, a potential legal heir renounces their potential rights from the testator’s estate (waiting status) by receiving compensation (consideration). In contrast, in a non-consideration renunciation of inheritance agreement, the potential heir receives no compensation.

In the case at hand, the wife renounced her potential inheritance rights in the testator’s estate in exchange for three apartments, making the agreement a consideration renunciation of inheritance agreement.

The automatic termination of an inheritance agreement upon death under Article 548 of the Turkish Civil Code primarily applies to positive inheritance agreements (appointment of heir and specific bequest).

Additionally, a non-consideration renunciation agreement automatically becomes void upon the renouncing person’s death before the testator (based on the opposite interpretation of Article 528/3 of the Turkish Civil Code).

However, a consideration renunciation agreement does not automatically become void upon the renouncing person’s death before the testator.

Because a person renouncing for consideration is neither in the position of a “legatee” (specific bequest) nor an “appointed heir.” Again, if the renouncing person dies, the renunciation applies to their descendants if any (Article 528/3 of the Turkish Civil Code).

However, the contrary can be agreed upon in a consideration renunciation agreement, and thus the agreement can be rendered void upon the renouncing person’s early death. In Turkish inheritance law doctrine, it is argued that a consideration renunciation of inheritance agreement does not automatically become void upon the renouncing person’s early death.

As explained above, the consideration renunciation of inheritance agreement in question did not automatically terminate upon the renouncing person’s death before the testator.

Therefore, Article 548 of the Turkish Civil Code is not applicable here. The agreement did not include a provision stating that the renunciation would automatically terminate upon the renouncing person’s early death.

Thus, the court’s acceptance of the lawsuit and annulment of the agreement was incorrect. The appealed decision should be REVERSED for dismissal of the case (…) 8th Civil Chamber, Case No: 2013/22073 Decision No: 2014/20701 Date: 13.11.2014

---

In the decision dated 17.5.2006 and numbered 2006/218-561, the inheritance of Osman Özkan was accepted as 56 shares without addressing the renunciation of inheritance agreement, and shares were allocated to those who renounced.

The decision was appealed by the plaintiff.

Inheritance and succession are determined based on the provisions in force at the time of the testator’s death (Article 17 of Law No. 4722).

The heirs Şermin Öztürk, Meryem Özkan, and Fatma Bulut renounced their inheritance in favor of Hamdi Özkan, Güngör Özkan, Ramazan Özkan, and İdris Özkan through a consideration renunciation agreement dated 17.8.1984 and numbered 9606 of Tekirdağ 2nd Notary (…. If our siblings are subject to disinheritance, renunciation of inheritance, or exclusion from inheritance before the testator, the inheritance rights and shares of the affected person(s) will pass not to us but to the spouse or children of the affected person(s)…) İdris Özkan died before the testator on 22.1.1989.

The renunciation of inheritance agreement was read in the file numbered 1992/149 of the Tekirdağ Civil Court of Peace upon the writing of the Notary and the Chief Public Prosecutor’s Office.

With the decision dated 23.2.1993 and numbered 1992/149 and 1993/108, it was decided to register that “Şermin Öztürk, Fatma Bulut, and Meryem Özkan renounced their inheritance from their testator Osman Özkan,” and this decision became final on 2.1.1998.

Article 475 of the Turkish Civil Code No. 743 states, “A person can make a consideration or non-consideration renunciation of inheritance contract with one of the heirs. In this way, the person renouncing loses their heir status.

If the renunciation contract is for consideration, unless otherwise stipulated, it also affects the descendants of the person renouncing.”

An heir who renounced the inheritance is not considered completely severed from the estate. When the inheritance is opened (Article 539 of the Turkish Civil Code), if the debts of the estate exceed the assets and the heirs are unwilling to pay, the person who renounced the inheritance is obliged to return what they received as consideration and the remaining fruits thereof.

(Article 477 of the Turkish Civil Code) Furthermore, if an action for reduction is brought, the heir who renounced can return what they received through the agreement and participate in the division of the estate (Article 416 of the Turkish Civil Code). It is clear that the person who renounced the inheritance is not entirely severed from the inheritance.

Requesting a certificate of inheritance is to acknowledge the existence of a factual situation and to determine the relationship of succession between individuals.

Due to the nature of this request, applying to the court does not lead to the loss of any rights of the heir nor does it change the inheritance status.

The children of the testator, Şermin Öztürk, Meryem Özkan (Ağaoğlu), and Fatma Bulut, lost their heir status due to the renunciation of inheritance.

The presence of a renunciation of inheritance agreement does not prevent requesting a certificate of inheritance. However, this must be noted in the certificate of inheritance, indicating to whom or to whom the shares of those who lost their heir status are allocated in the ruling.

It was procedurally and legally incorrect to render the decision without considering these issues.

RESULT: The appealed decision is REVERSED for the reason stated above, (…) 2nd Civil Chamber, Case No: 2007/2597 Decision No: 2007/4205 Date: 15.03.2007

---

For further assistance or consultancy on this matter, you can contact us.