What is a Reserved Share? What are the Reserved Share Ratios?
In the will of the testator or in other dispositions related to death, determining the legally reserved shares of the heirs is very important to prevent loss of rights. A testator may have infringed upon the reserved shares of the heirs we mentioned through their dispositions and donations related to their life or death. To prevent such infringements and possible loss of rights, the law grants heirs the right to demand the reserved share and file a lawsuit to review these dispositions after the testator’s death.
The subject of the reduction lawsuit, which aims to prevent these infringements and violations, is the deceased person’s savings that infringe on the reserved share, such as donations, etc. This is a deduction made on the basis of the infringement ratio, i.e., the portion that interferes with the reserved share, and this deducted portion is allocated to the heir who has the reserved share.
The tenki case is regulated in Article 560 of the TMC, and the first paragraph of this regulated article states: “Heirs who cannot obtain the value of their inheritance shares may file a lawsuit for the tenki of the testator’s savings that exceed the portion he/she could dispose of. The form of this lawsuit is as follows:”.
As explained above, to exercise this right of reduction:
The testator must have exceeded the disposal ratio (in a manner infringing upon the reserved share) through dispositions arising from death or cross-border gifts.
It is alleged that the heir’s right to the reserved share has been violated.
Who can file a reduction action?
The heir whose reserved share has been violated has the authority to file a reduction lawsuit. However, as might be expected, an heir who has waived their inheritance rights through a waiver agreement, or who has absconded with the inheritance or been disinherited, does not have the right to request an investigation.
In some cases, the creditors of heirs with a reserved share also have the right to file a lawsuit. According to Article 562 of the Turkish Civil Code, if the heir is unable to pay their debts and does not seek their rights even though they see that the reserved share has been violated, their creditors may request a review and file a lawsuit instead.
Article 562 of the Turkish Civil Code adds certain conditions to the right to file for divorce on behalf of the heir:
The certificate of payment difficulty or bankruptcy decision must be in the hands of the registered heir’s creditors or at the bankruptcy office.
T he heir candidate must have requested an investigation instead of filing a lawsuit.
The creditors or the bankruptcy court must have notified the registered heir to file a reduction lawsuit, and this warning must remain valid without delay.
The competent and responsible court in reduction lawsuits is the Criminal Court of First Instance in the location of the testator’s last residence.
In a reduction lawsuit, the defendant is the person to whom a secret share was left in favor of unauthorized gifts. The defendant, i.e., the person to whom the inheritance was bequeathed in the will, may also be a legal or appointed heir.
A person who believes that their secret share has been violated can only request an investigation after the testator’s death. This right begins on the day the heir learns that their secret share has been violated, and the one-year period is the period for reducing the right. However, if the heir is unaware that their reserved share has been violated, for example, a 10-year limitation period applies. This period begins on the date the will is opened regarding the testator’s dispositions. Conversely, in the case of contesting dispositions and gifts made through inheritance agreements or inter vivos transactions, the 10-year period begins to run from the testator’s death. This is because these concepts do not fall under the concept of the opening of the will.
The reserved share ratios we mentioned are as follows:
Half of the estate shall go to the testator’s children.
One-fourth of the inheritance will go to the mother, one-fourth to the father,
For the surviving spouse, parents, or children, and if there is another heir, the entire legal inheritance;
In other cases, the situation where 3/4 of the inheritance share cannot be left to any person or institution through a will or other dispositions related to death is called a reserved share. In other words, even if the heir has made arrangements to eliminate these reserved shares while alive, the reserved share is protected.
According to our laws, the reserved heirs are the children, grandchildren, and great-grandchildren of the person leaving the inheritance to the first group (i.e., the entire first group). In the second group, the deceased person’s parents have a reserved share. In contrast, brothers and sisters do not have a reserved share. There are no reserved heirs in the third group. In addition, our laws grant the surviving spouse a reserved share.
On the other hand, secret shares and the savings rate are calculated based on the net value of the term. Therefore, for the values to be given in exchange for secret share rates, the passive values of the term asset are first deducted.
Term debts
Funeral expenses
Measuring costs
Three months’ living expenses for those living with the heir