Legal Journal

Inheritance Renunciation Contract

Renunciation of inheritance is possible by executing a contract between legator and his/her probable heir (renouncing party). The renouncing party, by signing the contract, may wholly or partly waive his/her future estate.

Inheritance renunciation contract (renunciation contract) is one of the inheritance contracts defined under Turkish Civil Code (“Civil Code”). Therefore, Art. 503 of Civil Code with regards to incapacity for executing an inheritance contract shall also be applied to renunciation contract and so, parties of the contract must capable of judgment and reach the age of majority. On the other hand, according to Art. 545 of Civil Code, for validity of the contract; the contract must be issued as an official will, the parties must declare their wish at the same time and the contract must be signed i) by the attention of both parties, ii) before the notary public and iii) in presence of two witnesses. Violation of the Art. 545’s provisions, such as execution of the contract in the absence of notary public, attention of only one of the parties or attention of attorney of a party on behalf of the relevant party, shall lead to invalidity of the renunciation contract.

The contract can be prepared with (onerous) or without (gratuitous) valuable consideration. According to provisions of Art. 528/3 of Civil Code, in case of an onerous renunciation, unless otherwise stated in the contract, descendants of renouncing party shall also be affected to the consequences of the contract and they shall not be heir of the legator. However, since there is no special provision with regards to gratuitous renunciation, this type of renunciation shall not reflect on descendants of renouncing party and they preserve their heirship. Doctrine accepts that otherwise may be agreed upon the contract.

Renunciation contract becomes invalid under two circumstances:

      1. Art. 529/1 of Civil Code: In case of inheritance is renounced in favor of a certain heir, if this specific individual fails to acquire the inheritance of legator for any reason such as death, renunciation or disclaimer of inheritance, disinheritance etc.

      2. Art. 529/2 of Civil Code: In case of inheritance is not renounced in favor of a certain person (in such case, the renunciation contract shall be accepted to be executed in favor of descendants of the nearest common ancestor), if descendants of the nearest common ancestor fail to acquire the inheritance of legator for any reason.

Invalidity of the contract causes that renouncing party keeps his or her rights on estate as if renunciation contract has never been made and he/she has never been lost his or her capacity of heirship.

Renunciation contract might be subject of claim for nullity in case of defect in consent such as duress, fraud, error; or deprivation of judgment of any/all party/parties at the time of executing the contract. However, claim for nullity regulated by the Law which can be claimed by creditors of overindebted heir in case of such heir has disclaimed an inheritance in order to withhold it from his or her creditors, shall not be applied mutatis mutandis to renunciation contract.

Av. Nihan Malkoçer