As is known, all systems of law which recognize private ownership of property also recognize that such ownership should pass at the death of the owner to others.
The inheritance law deals with the passage of a person’s property right at his death. This is expressed in the Turkish Constitution numbered 2709 (hereinafter referred to as “Constitution”) as
“Every person has the right to own and inherit property”.
The details of the inheritance law are regulated in the Turkish Civil Code numbered 4721 (hereinafter referred to as “Turkish Civil Code”).
In the absence of an express provision made by a deceased person, this estate will, by operation of law, go to his close relatives upon his death.
This is so because of the importance placed on the family and the duty of the members of the family to support each other. Persons are free however, by will or otherwise, to dispose of their property to persons other than their relatives, within the limits permitted by law. A particular indirect limitations placed on the power of disposition is the existence of death duties or inheritance taxes which even in western countries, where the concept of private ownership is most widely recognized, are relatively high.
Under Turkish Law, persons are generally free to dispose of their property at their death. They may execute wills. By which they leave their property to such real or legal persons as they choose. This is so called “testate succession” has some limits. Notwithstanding the provisions of a will, close relatives of the deceased are entitled to a certain portion of the estate, called as the reserved portion.
In the absence of such disposition, the estate of a deceased person will pass, in the proportions prescribed by law, to his relatives, or if there are none, to the state. This is called as “intestate succession”.
Intestate Succession
Parental
If the deceased has failed to make a will or otherwise provide for the distribution of his estate at his death, it will be distributed among his next of kin.
For this purpose, the blood relatives of a deceased person are divided into groups which are called parental. The first parental consist of the descendants of the deceased, the second of his parents and their descendant, the third of his grandparents and their descendants. The fourth parental is the state. The rights of a surviving spouse and how they relate to parental is discussed below.
The following rules apply to the operation of system of parental;
First, as long as one member of a parental is living at the death of the decedent, the more removed parental will be eliminated. Thus, if the deceased leaves one child, parents or grandparents of the deceased, as well as their descendants, will not receive anything. Secondly, among the members of each parental those nearest in any degree will be represented by his or her descendants.
For instance, if N is survived by one child, a son, he will be his sole successor. But if this son had died before N, then the surviving children of N’s son, but not, for example, N’s parents will take the estate. Thirdly, surviving successors in the same degree of closeness to the deceased in the same parental, participate in the estate equally. Also, there is equality among male and female successors. Therefore, if N dies in state, leaving two sons and one daughter, each of them will receive one third of the estate. If one of the sons had predeceased N, leaving two children, his share will go to them, entitling each to one sixth of the whole estate.
B. Other Persons who may inherit
Children Born Outside of Marriage
Children born outside of marriage have the same rights of inheritance from their mother as other children. Those children recognized by their father or whose paternity is established by a court may inherit from their father, equally to the children who were born within the marriage. For example, when a man leaves two children born within the marriage and one, for example, recognized child, each will receive 1/3 of the estate. The former rule entitled the child only one half as much as a legitimate child had already been found by the Constitutional Court against the equal treatment clause of the Constitution. The Turkish Civil Code explicitly declares the equality within the wording of the Article 498.
Adopted Children
Adopted children are treated the same as the legitimate natural born children of the deceased. Therefore they receive the same amounts as the other children of the deceased. In accordance with the Article 500 of the Turkish Civil Code, the adoptive parent will, however, not take from the adopted child’s estate if the predeceases them. An adopted child may be an intestate successor of his natural parents and may thus inherit from both his adoptive and real parents.
The Surviving Spouse
The surviving spouse shares the estate with the living blood relatives of the deceased, if any. Her or his portion varies according to the closeness of the other successor of the deceased with whom she or he has to share the estate. If there are close relatives, such as children, the surviving spouse receives less; of there are only distant relatives she receives more.
Should the surviving spouse inherits together with the descendants of the deceased, she gets one fourth of the estate. If the surviving spouse takes with the second parental, she receives ownership of one-half of the estate. If she takes with grandparents of the deceased she gets ownership of three-fourths of the estate. If there is no grandparent, she becomes the sole legal successor ad takes the whole estate.
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