In short
The reserved share is the reserve the statute protects for particular heirs. A will does not wipe this share out as it pleases. Reduction and annulment are separate doors.
The calculation of the share looks at the assets and the liabilities of the estate. A ratio is not written by heart.
Drawing up a will is in the writing a will.
A notarial deed drawn up in Ankara strengthens the form. It does not finish the reduction.
Related writings: simulation by the deceased.
After a will is read, or after heavy lifetime dispositions come out, the worry "my share melted" is often heard. At this point two concepts come forward: the reserved share and reduction. The reserved share is the minimum protection recognised for particular heirs. Reduction is the path of an action that is applied to when this protection is exceeded.
This writing explains, for information, what the reserved share means, whom it concerns, the general working of the process of reduction, and mistakes that are often made. Ratios, periods and calculations change according to the concrete estate. The account is a general frame. It does not contain a promise of a definite result.
What is the reserved share?
The reserved share is the minimum right of inheritance that the statute protects, and that the person who leaves the inheritance cannot wholly remove by dispositions on death. The aim is to prevent particular relatives from being left wholly outside the inheritance. This protection takes the freedom of disposition of the person who leaves the inheritance out of being unlimited.
The persons who may hold a reserved share are determined by the statute. Categories such as descendants, parents and the spouse come into play, or do not, according to which class is the heir. For this reason assumptions of "the same definite ratio for every child" or "the same result for every spouse" can mislead.
Reduction provides the reduction of dispositions that exceed the reserved share. Reduction does not have to disregard the whole of the will. Most of the time a balancing is discussed over the part that violates it. Every complaint does not mean an automatic decision of reduction. A calculation, a period and the capacity of a party are needed.
Whom does it concern?
- Legal heirs who may hold a reserved share
- Persons who draw up a will or an inheritance contract, or persons in whose favour a disposition was made
- Families in which a heavy gift or a disposal was made during life
- Persons who live a dispute of "my share decreased" in the distribution of the estate
- Persons who want to assess together the spouse's share of the inheritance and a claim of the marital property regime
- Persons who do not want to mix the possibility of refusing the inheritance with the protection of the reserved share
Refusal and the reserved share are different institutions. If refusal is thought of in an indebted estate, the writing refusal of the inheritance should be read separately. The dispute of the reserved share comes forward more in scenarios of "the disposition went too far".
How does the process work?
- Heirship and the determination of the estate: Who the heirs are, and the rough content of the estate, are determined.
- Listing of the dispositions and the dispositions made: Wills, dispositions on death, and dispositions that may affect the calculation of reduction, are gathered.
- A preliminary assessment: Whether there is a possibility of a violation of the reserved share, and which items are in dispute, is noted.
- A check of the period: The statutory periods for reduction are reviewed. The dates of learning are documented.
- The stage of the action and of the calculation: If an action is opened, valuation, set-off and the calculations of reduction are carried on.
- The decision and the effect on distribution: The result of the reduction is reflected in the actual distribution and in the steps of registration.
In some files it may be possible to proceed by a settlement or by a partial waiver. An uncertain waiver may weaken the protection of the reserved share. A written and open record is preferred.
Conditions, periods and notes on the calculation
For a claim of a violation of the reserved share, the holding of the reserved share must first become clear. If there is no capacity of a party, the action may not be heard. Then come the disposition or the disposition made that gave rise to the violation, and the valuation of the estate. Disputes of the date and of the method of valuation are frequent in practice.
Periods carry a risk of loss of the right. Years passing on the ground "we will talk inside the family" may make it harder to open an action later. The fact of learning gains importance especially in claims of a will that came out late, or of a hidden disposition.
A separate heading to be careful of on the side of the spouse is the liquidation of the marital property regime. Some claims of the spouse may come onto the agenda before the share of the inheritance, or beside it. If this separation is not made, the wrong subject of the action may be chosen. If it is needed, the frame of family law is assessed together.
Claims of simulation, or of "a sale in appearance", in lifetime transactions ask for proof. The land-register record does not by itself finish every dispute. The claim cannot proceed without a document either.
Mistakes that are often made
- Treating every disposition as an automatic reduction
- Speaking the ratio of the reserved share by heart and without a file
- Mixing the marital property regime with the share of the inheritance
- Missing the periods
- Assuming that the whole of the will will be counted as "absent"
- Opening an action before gathering the documents
- Seeing refusal and reduction as the same solution
- Leaving the text of a waiver or of a settlement uncertain
A point that matters: the spouse's rights are sometimes taken together with the liquidation of the marital property regime. They should not be gathered under a single heading.
The related legal frame
The provisions of the Turkish Civil Code on the reserved share and on reduction are the basic basis. Heirship, the disposable portion and the calculation of reduction are parts of the same system. In judicial practice the method of calculation, the nature of the disposition and the period are often disputed. Decisions depend on the concrete estate.
For a general view, the page inheritance law. In estates that carry a risk of debt, the writing refusal of the inheritance is complementary.
The relation of the disposable portion and the reserved share
The part the person who leaves the inheritance may dispose of, and the reserved share, are concepts that complete each other. When the disposable portion is exceeded, the part that exceeds it may be the subject of a dispute of reduction. This does not mean that the will is invalid from the start. Most of the time the text stays standing. The violation is sought to be removed.
When a ratio is spoken of, the relation of the class is the basis. The position of the parents while there are descendants, and the persons with whom the spouse is a co-heir, change the concrete table. Ratio tables of a single line on the internet may not reflect the family structure of the file. A calculation should not be made before it is written who the heirs are.
An appointed heir, or a bequest of a particular property, may in fact melt the share of the holder of the reserved share. In this case technical disputes, such as which disposition will be reduced first in the calculation of reduction, may come onto the agenda. The rules of order and of set-off are read from the document of the file, not by heart.
A lifetime disposition, simulation and proof
A gift made while alive, a disposal, or a sale at a low price, may be discussed in the calculation of reduction. Not every transaction is an automatic subject of reduction. The time, the price, the aim and the position of the parties are examined. Heavy disposals in the last period of the deceased are questioned more often in practice.
A claim of simulation carries a separate burden of proof. A claim of "a gift that looks like a sale" may not proceed without being supported by a witness, a bank flow and the facts of life. The words of sale on the land-register record do not by themselves finish every dispute. The claim cannot be built by speculation either.
Valuation is the heart of reduction. An expert examination may be needed for an immovable, a company share or an asset of a special kind. Disputes of the date and of the method of valuation change the result. For this reason the need for documents and for an appraisal should be planned at an early stage.
The spouse, the marital property regime and the family-law intersection
On the side of the spouse, the reserved share and the liquidation of the marital property regime are often mixed. A claim of the marital property regime may be an item separate from the share of the inheritance. If a dispute of divorce or of separation of property continues, the claims need to be gathered on the right legal shelf. Otherwise errors of both the period and the capacity of a party may arise.
Subjects such as custody, maintenance or an annotation of the family home may not be the subject of the action for reduction directly. They may affect the estate and the actual position of the spouse. In this intersection the frame of family law is complementary.
If there is a claim in the texts of waiver and of settlement that the reserved share was waived, the validity and the scope of the waiver are examined separately. Uncertain sentences of "I waived all of my rights" produce a dispute of interpretation later.
The order of parties and of the claim in the action for reduction
In the petition of the action, the dispositions and the dispositions made that are claimed to have given rise to the violation of the reserved share should be shown as concretely as possible. A general account of "my right was eaten" weakens the order of the calculation and of the evidence. Documents on the assets and the liabilities of the estate, land-register records, and traces of a bank and of a company share, should be gathered early.
The defendant side may be the beneficiaries of the will, the persons who received the disposition, or the persons who hold the estate. A lack of parties may lead to the trial lengthening. A check of competence and of jurisdiction should be made at the same stage as well.
Requests for an interim measure may come onto the agenda in some files. They are not automatic in every action for reduction. The measure depends on disputes of an appearance of being justified and of security. The aim is to help limit disposals that would leave the later result of reduction unable to be applied in fact.
An action for distribution and an action for reduction are not the same thing. Sometimes they run together. Sometimes they run separately. Which path will come first is planned according to the concrete need. A wrong joining, or a missing claim, may delay the result.
A short check
The order in a dispute of the reserved share is the table of heirship, the list of the estate and of the dispositions, the check of the period, the calculation, and the claim of reduction if there is one. The marital property regime and the share of the inheritance should be separated. Not every disposition should be treated as an automatic reduction. Instead of disregarding the whole of the will, the removal of the violation is aimed at. Proceeding with documents and with the period is sounder than speaking a ratio by heart.
The set-off of debts and the method of valuation in the calculation of reduction affect the result directly. For this reason a table based on documents should be built, instead of speaking a ratio by heart. If a settlement is discussed, the scope of a waiver of the reserved share should be written openly. An uncertain waiver may give rise to a new dispute later.
In practice a claim of a violation of the reserved share and the feeling "I do not find it fair" should be separated from each other. Reduction is not a tool of emotional justice. It is a technical path that protects the statutory minimum share. If this separation is not made, the risk of the wrong defendant, the wrong claim and a loss of the period increases. Signing a waiver or a settlement before the calculation becomes clear carries a similar risk as well.
Where the reserved share is read from
The certificate of heirship and the record of the disposition are read from the file. A share ratio and a fraction that are not written in the file are not added to this text. Reduction is not put in the place of refusal of the inheritance. An office in Çankaya does not change the competent authority.
Conclusion
The reserved share is a balance between the freedom of disposition and the protection of the family. On a claim of a violation, the path of reduction may come onto the agenda. A result does not arise without the calculation, the period and the facts. This writing is for general information. The assessment may change according to the features of the concrete event. The language of a promise of a result cannot be used.
A ratio and a fraction that are not in the file on the reserved share are not added.