Inheritance Reduction Case and Reserved Share 2
What Are Reserved Shares in Inheritance Law?
In inheritance law, a reserved share is a specific percentage of the legal inheritance share that is protected against certain dispositions by the testator that violate inheritance rights. The testator cannot dispose of these percentages. The inheritance rights of the heir who is the owner of the reserved share cannot be eliminated in any way.
In inheritance law, the reserved share is calculated based on the Legal Inheritance Share.
Accordingly, the reserved shares are as follows:
Reserved Share Right in Descendants and Inheritance Share: Half (1/2) of the inheritance share is considered the reserved share for the descendants of the testator. For example, if the testator (deceased) leaves three children and a spouse as heirs after death and bequeaths all of their estate to their spouse, the distribution is made taking into account the reserved share of the heirs. In this case, each child’s legal inheritance share is 1/4, and the reserved share ratio is 1/2.
Therefore, even if the testator leaves all their assets to their spouse, each child has the right to inherit 1/8 of the estate, and the testator cannot touch this reserved share. In our concrete example, if the testator had not left all of their assets to their spouse, the children, who would have been entitled to 1/4 of the legal inheritance if the testator had left all of their assets to their spouse, would have been entitled to 1/8 of the inheritance.
Inheritance Law:
Mother and Father and Reserved Share Rights: In inheritance law, one-fourth (1/4) of the legal inheritance share is considered a reserved share for each of the mother and father.
Reserved Share for the Surviving Spouse: If the surviving spouse is an heir together with descendants (Class 1) or parents (Class 2), the entire legal inheritance share is reserved; in other cases, i.e., if the surviving spouse is the sole heir or an heir together with Class 3, three-quarters (3/4) of the legal inheritance share is considered the reserved share.
However, for deaths occurring before January 1, 2002, inheritance shares and reserved shares are calculated according to the old system. The ratios under the system prior to this date are different. Furthermore, the reserved shares of siblings who were considered reserved-share heirs until May 10, 2007, will be taken into account in lawsuits filed due to deaths occurring before this date. If the death occurred after May 10, 2007, the reserved shares of the siblings will not be calculated.
If the savings subject to the reduction were made before January 1, 2002, they are not subject to the Old Civil Code. What matters is the date of death of the testator.
The Testator’s Savings Ratio in Inheritance Law
The disposal ratio can be expressed as the ratio that the testator can freely dispose of, and this ratio is found by subtracting the total of all the reserved shares mentioned above from the estate. Determining the disposal ratio and reserved shares actually arises automatically with the calculation of the estate. Therefore, the main issue here is determining the estate (net estate). In practice, this is usually done through an expert.
For example, if we consider the estate to be 1 whole number, subtracting the number represented by the total hidden shares (a fractional number) from this 1 will give us the fractional number representing the savings rate. For example, in a concrete calculation, if the total hidden shares are 5/8, the savings rate is the remaining 3/8.
How is Inheritance Calculated?
Since calculating inheritance is a technical matter, in practice, the net inheritance is calculated by an expert. When calculating net inheritance, the assets of the inheritance (real estate, money, receivables, etc.) and liabilities (debts) are determined, and the liabilities are subtracted from the assets to find the net inheritance.
The assets of the inheritance are the real estate values left by the deceased at the time of death and the income that can be repaid and deducted. The liabilities of the inheritance consist of the debts of the deceased, the three-month living expenses of the persons living with the deceased, the costs of sealing the inheritance and keeping records, funeral expenses, and other similar expenses.