Reserved Share and Action for Abatement

What we do in this area

Abatement files mostly begin with the same sentence: the deceased left a significant part of their assets to a single person, by will or by gifts made during their lifetime. Under this heading the office brings actions for abatement on behalf of heirs whose reserved share has been infringed, defends heirs or beneficiaries faced with an abatement claim, and advises on reserved share limits at the stage of planning testamentary dispositions. This page is a sub-topic of the family and inheritance law tree; the division of the estate is covered on the partition of the inheritance and the estate page.

Main work carried out:

• Bringing the action for abatement and defending against an abatement claim
• Calculating the disposable portion and the reserved shares
• Assessing the action for annulment of a will together with abatement (Article 557 et seq. of the Turkish Civil Code, TMK)
• Reviewing disinheritance and renunciation of inheritance agreements
• Determining the choice between collusive transfer by the deceased (muris muvazaası) and abatement

Who has a reserved share, and how much

The reserved share of siblings was abolished by the legislative amendment of 2007; siblings may be legal heirs, but the deceased may freely leave the share falling to them to someone else. The part remaining outside the reserved shares is the disposable portion, and the deceased may dispose of it as they wish by will, inheritance agreement or gift (Art. 505).

Which dispositions are subject to abatement

Abatement is applied first to testamentary dispositions (will, inheritance agreement); if these are insufficient, lifetime dispositions are resorted to, going from the most recent to the oldest (Art. 570). The lifetime dispositions subject to abatement are listed in Art. 565: dispositions made on account of the share of inheritance and not subject to equalisation; those made for the purpose of settling inheritance rights before death; gifts made by the deceased while reserving a free right of revocation, and gifts made within one year before death other than customary presents; and dispositions evidently made for the purpose of defeating the reserved share rules.

The most common example in practice is the deceased gifting real estate at the land registry to one of their children during their lifetime. For transfers that appear as a sale at the land registry, collusive transfer by the deceased (muris muvazaası) is assessed before abatement: if it is proved that the transfer was in reality a gift, the transaction is treated as void from the outset and no reserved share is required; a genuine gift may be subject to abatement only if the conditions in Articles 560 and 565 are met and a reserved share has been infringed. The two claims may be raised in the same petition, in the alternative.

How the calculation is made

The disposable portion is calculated on the estate as at the date of the deceased's death; the debts of the estate, funeral expenses, the costs of sealing and inventorying the estate, and three months' living expenses of persons who lived with the deceased and were maintained by them are deducted (Art. 507). Lifetime dispositions subject to abatement are added to this estate (Art. 508). Each heir's reserved share is determined on the net estate so found; dispositions exceeding the disposable portion are reduced proportionally and to the extent needed to make up the reserved share (Arts. 560, 563). Where real estate that cannot be divided without loss of value is concerned, the beneficiary chooses between keeping the asset by paying the value of the excess and giving up the asset and receiving the equivalent of the disposable portion (Art. 564). The calculation proceeds on land registry records, bank transactions and a court-appointed expert's valuation; the valuation stage largely determines how long the file takes.

Time limit, jurisdiction and defence

The action for abatement is brought after the death of the deceased; it cannot be brought during their lifetime. The right of action lapses one year from the date the heirs learn that their reserved shares have been infringed and in any event ten years from the opening of the will for wills and from the opening of the succession for other dispositions (Art. 571); these are forfeiture periods (not limitation periods). Abatement may be raised as a defence at any time. The court with subject-matter jurisdiction is the civil court of first instance; the competent court is the court of the last domicile of the deceased (Art. 576); the office follows files in İzmir and in other provinces where the venue rules so require.

Two defences stand out on the respondent's side. If the deceased disinherited the heir with a reserved share on the grounds listed in the Code (committing a serious crime against the deceased or their relatives, or seriously failing to fulfil obligations arising from family law) and the ground is stated in the testamentary disposition, the reserved share claim falls away (Arts. 510, 512). An heir who has waived their share by an agreement of renunciation of inheritance concluded with the deceased in the form of an inheritance agreement cannot seek abatement (Art. 528). Both documents are separately examined as to form and grounds.

For details of how we work: How we work.