What is the Real Rejection of Inheritance in Turkish Law?
REAL REJECTION OF INHERITANCE
The inheritance, which includes all the private law relationships of the deceased that are capable of being transferred, is opened upon the death of the deceased. The heirs of the opened inheritance are those who have the qualification to be heirs of the deceased under the principle of universal succession. The principle of universal succession is the most fundamental principle of inheritance law. It refers to the automatic transfer of an estate’s assets and liabilities as a whole from one person to another through a single legal event. In other words, debts, receivables, movable and immovable properties, etc., are all inherited directly by the heirs without the need for separate transactions.
In the narrow sense, universal succession means heir. If there is only one heir, the estate passes automatically to the heir upon the death of the deceased. If there are multiple heirs, the concept of “inheritance partnership” emerges. Inheritance partnership is the joint ownership of the estate by the heirs until it is divided among them. In an inheritance partnership, the heirs are jointly and severally liable, personally, and unlimitedly for the debts of the deceased. To protect heirs from this unlimited liability, the legislator has established the institution of rejection of inheritance.
The institution of rejection of inheritance, regulated between Articles 605 and 618 of the Turkish Civil Code, includes real rejection of inheritance and presumed rejection of inheritance. With the presumed rejection of inheritance, the legislator aims to protect the heirs of a deceased who is unable to pay their debts by assuming the “inheritance is rejected” as per the second paragraph of Article 605 of the Civil Code.
The situation is different in the case of real rejection of inheritance. For real rejection, the heirs’ declarations of intent are required. In the real rejection of inheritance, the legislator has granted the heirs a right to reject because heirs are not obliged to bear the consequences of the deceased’s financial and economic mistakes.
Real Rejection of Inheritance
LEGAL NATURE OF THE REAL REJECTION OF INHERITANCE
The real rejection of inheritance is when the legal and appointed heirs of the deceased decline their heirship status with a written or verbal declaration made to the Civil Court of Peace under the conditions specified by law.
The real rejection of inheritance is the exercise of a right that creates a negative innovation. This process terminates the heirship status or legal relationship related to inheritance through the heir’s declaration of intent. Based on Article 609 of the Civil Code, which states, “Rejection of inheritance is done orally or in writing by the heirs to the civil court,” we can say that this declaration of intent is not subject to any formalities. Heirs do not need to provide any justification when making their rejection declaration.
CONDITIONS FOR THE REAL REJECTION OF INHERITANCE
– The person rejecting the inheritance must have the right to reject it.
The only persons who can reject the inheritance are the heirs of the deceased. However, not every heir can reject the inheritance. The first paragraph of Article 605 of the Civil Code states that “Legal and appointed heirs can reject the inheritance.” According to this provision, legal and appointed heirs have the right to reject the inheritance. Legal heirs are those designated as heirs by the legislator. Legal heirship is regulated in Articles 495 and subsequent of the Civil Code. These individuals include the blood relatives of the deceased, the surviving spouse, adopted children, and the state. Appointed heirs are individuals whom the deceased designates as heirs by making a testamentary disposition over the estate.
Based on Article 616 of the Civil Code, the legislator has also granted legatees the right to reject their legacies. There is no statute of limitations for rejecting a legacy.
– The heir rejecting the inheritance must have full legal capacity.
For the declaration of intent by an heir rejecting the inheritance to be valid, they must have full legal capacity. The declaration of intent that the heir rejects the inheritance will only have legal consequences if the heir has full capacity. The rejection of inheritance by limited capacity individuals with a legal advisor appointed is considered valid similarly to those with full capacity.
If the heir lacks full capacity or has limited capacity, the legal representative of the limited capacity heir can reject the inheritance on their behalf. For a declaration of rejection by a completely incapacitated heir to have legal consequences, their legal representative must reject the inheritance on their behalf.
– The declaration of intent by the heir rejecting the inheritance must not be flawed.
Mistake, fraud, and duress are conditions that invalidate the declaration of intent. To reject the inheritance, the heir’s declaration of intent must not be flawed. If any of these conditions exist, the declaration of intent to reject the inheritance may be subject to annulment under Articles 30 and subsequent of the Turkish Code of Obligations.
– The person rejecting the inheritance must do so within the prescribed period.
The inheritance is opened upon the death of the deceased. To qualify as an heir, the deceased must have died. Therefore, the inheritance cannot be rejected while the deceased is alive. The unwanted inheritance can only be refused by renunciation of inheritance while the deceased is alive.
Unlike presumed rejection, there is a period for the real rejection of inheritance. The period prescribed for the real rejection of inheritance is regulated in Article 606 of the Civil Code. The relevant provision is as follows: “The inheritance can be rejected within three months. This period starts for legal heirs from the date they learn of the death of the deceased unless they can prove that they became heirs later; for appointed heirs, it starts from the date the deceased’s disposition is officially notified to them.” This period prescribed for rejecting the inheritance is a limitation period.
Article 615 of the Civil Code also provides that, in the presence of important reasons, the Civil Judge may extend the period or grant a new period for those who wish to reject the inheritance.
– The declaration of rejection by the heir must be unconditional.
According to the second paragraph of Article 609 of the Civil Code, “The rejection must be unconditional.”
– The heir rejecting the inheritance must make their declaration to the Civil Court of Peace.
According to the provision regulated in Article 609 of the Civil Code, “Rejection of inheritance is done orally or in writing by the heirs to the civil court. The judge records the oral or written declaration of rejection in a record.”
TRANSFER OF THE RIGHT TO REJECT INHERITANCE AND DEPRIVATION OF THE RIGHT TO REJECT
Real Rejection of Inheritance
The right of an heir who dies without rejecting the inheritance can pass to their heirs. The regulation in Article 608 of the Civil Code is as follows: “The right to reject the inheritance of an heir who dies without rejecting the inheritance passes to their heirs. The period for these heirs starts from the date they learn that the inheritance has passed to their deceased. However, this period does not end unless the period granted to the original heir for rejecting the inheritance has expired. If the inheritance passes to individuals who were not heirs before due to the rejection, their period starts from the date they learn that the inheritance has been rejected by the previous heirs.”
Deprivation of the right to reject is regulated in Article 610 of the Civil Code. The relevant article is as follows: “The heir who does not reject the inheritance within the legal period acquires the inheritance unconditionally. An heir who intervenes in the estate’s affairs, performs actions that are not necessary for the ordinary administration of the estate or for the management of the deceased’s affairs, or hides or appropriates estate properties cannot reject the inheritance. Filing a lawsuit or initiating compulsory enforcement to prevent the expiration of limitation or forfeiture periods does not eliminate the right to reject.”
In summary, an heir who does not reject the inheritance within the period loses the right to reject the inheritance and is deemed to have accepted it
definitively. Furthermore, implicit acceptance of the inheritance, such as hiding or appropriating estate property, also terminates the right to reject for that heir.
CONSEQUENCES OF REJECTING THE INHERITANCE
If one of the heirs rejects the inheritance;
The consequences of this situation are regulated in Article 611 of the Civil Code. If one of the legal heirs rejects the inheritance, their share passes to the rightful persons as if they were not alive when the inheritance was opened. However, if the appointed heir rejects the inheritance, their share passes to the closest legal heirs of the deceased unless it is understood from the deceased’s testamentary disposition that the deceased intended otherwise.
If all of the closest heirs reject the inheritance;
The consequences of this situation are regulated in Article 612 of the Civil Code. In this case, the inheritance is liquidated by the Civil Court of Peace according to the provisions of bankruptcy. The remaining values after liquidation are given to the rightful persons as if they had not rejected the inheritance.
If all descendants reject the inheritance;
In this case, according to Article 614 of the Civil Code, their shares pass to the surviving spouse.
COURT COMPETENT AND AUTHORIZED TO HANDLE LAWSUITS RELATED TO REAL REJECTION OF INHERITANCE
Real Rejection of Inheritance
The competent court determines which court should hear a case in a particular location. The real rejection of inheritance is a non-contentious jurisdiction matter. Therefore, the competent court is the Civil Court of Peace.
The authorized court also determines which court in a particular location should hear a case. As a result, the Civil Court of Peace of the last residence of the deceased is the authorized court.
COURT OF APPEAL DECISIONS REGARDING REAL REJECTION OF INHERITANCE
“In the present case, since it is understood from the plaintiff’s appeal petition that they withdrew their intent to reject the inheritance, the court should determine whether the other heirs consent to the plaintiff’s withdrawal from the real rejection of inheritance declaration, considering that there are other heirs of the deceased who died on 28.01.2005. If all other heirs do not consent to the plaintiff’s withdrawal from the rejection declaration, it should be investigated whether the plaintiff’s attorney had a special power of attorney authorizing the real rejection of inheritance at the time the lawsuit was filed. If there is no special power of attorney authorizing the real rejection of inheritance by the plaintiff’s attorney at the time the lawsuit was filed, it should be taken into account that the declaration of rejection of inheritance would not produce any legal effect, and a decision should be made accordingly.” (Court of Appeal 14. Civil Chamber, 2021/1915 E., 2021/3611 K.)
“In the case of the civil court of first instance; it was ruled that the plaintiffs’ request for rejection was related to the ‘real rejection’ request regulated in Article 605/1 of the Turkish Civil Code No. 4721 and since the request for rejection of inheritance was made within the statutory period and the lawsuit was filed without an opponent, it should be heard in the civil court of peace.
In the present case; the plaintiffs stated that the estate was insolvent and that they had unconditionally rejected the inheritance within the three-month statutory period following the death of the deceased. Since the expressions used regarding the insolvency of the estate were used to explain the petition and the request for rejection of inheritance and were not directed against the estate creditors, it would be appropriate to qualify the case as an unconditional real rejection of inheritance. The real rejection of inheritance is a case based on Article 605/1 of the Turkish Civil Code, and the competent court is the civil court of peace. Therefore, the dispute should be heard and concluded in the Civil Court of Peace…” (Court of Appeal 20. Civil Chamber, 2015/4145 E., 2015/7974 K.)
“The request is related to the unconditional and absolute rejection of inheritance based on Article 605/1 of the Turkish Civil Code. Inheritance can be rejected within three months. This period starts for legal heirs from the date they learn of the death of the deceased unless they can prove that they became heirs later; for appointed heirs, it starts from the date the deceased’s disposition is officially notified to them (Article 606 of the Civil Code).
According to Article 609 of the Turkish Civil Code, the competent court for requests related to the real rejection of inheritance is the civil court of peace. In the present case, since the petitioner unconditionally rejected the inheritance coming from the deceased in the lawsuit filed without an opponent, the request is related to the real rejection of inheritance regulated in Article 605/1 of the Turkish Civil Code. Since the competent court for requests related to the real rejection of inheritance is the civil court of peace, the decision to dismiss the case for lack of jurisdiction was incorrect, and therefore the judgment should be annulled.” (Court of Appeal 14. Civil Chamber, 2017/3118 E., 2021/834 K.)
“Based on the evidence collected and the entire file, it is understood that the request of the petitioner is related to the real rejection of inheritance based on Article 605/1 of the Turkish Civil Code. In the real rejection of inheritance, the oral or written declaration by the heirs rejecting the inheritance unconditionally is a right that creates a negative innovation and has legal consequences when recorded by the civil judge. In such a case, the task of the civil judge is to examine whether the rejection was made within the period and whether the rejecting person has the status of heir, and if these conditions are met, to record and register the rejection declaration in accordance with Article 609 of the Turkish Civil Code. Therefore, there is no legal obligation for the petitioner to attend the hearing after the petition for unconditional rejection of inheritance reaches the civil judge; a decision to “consider the case as not filed” based on Article 150 of the Code of Civil Procedure is contrary to procedure and law.” (Court of Appeal 14. Civil Chamber, 2019/3591 E., 2021/3600 K.)
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Real Rejection of Inheritance in Turkish Law
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