General View to the Waiver of Inheritance
In inheritance law, with the death of the inheritor, his/her assets pass to his/her heirs. Since the assets pass to the heirs with their active and passive characteristics, the Turkish Civil Code ("Code") provides some opportunities for the heirs who do not want to receive a share of the inheritance. The heirs may reject the inheritance after the death of the heir, or they may waive their inheritance rights with a waiver of inheritance agreement while both parties are alive.
Waiver of inheritance is regulated under Article 529 of the Code. According to the relevant article, the inheritor may conclude a waiver of inheritance with an heir without any compensation or by providing compensation to the heir. The waiver of inheritance is a mutually agreed contract by both parties, it is not a unilateral transaction that the inheritor or the heir can make unilaterally. The heir who waives the inheritance with the waiver of inheritance agreement also loses the title of heirship.
The waiver of inheritance agreement can be concluded between the inheritor and his/her reserved share heirs, that is, his/her mother, father, spouse and descendants. The reason for this is that the heir can release persons other than the reserved share heirs from the inheritance by unilateral action.
With the waiver agreement to be executed, both parties shall mutually renounce their right of inheritance, or agreements can be executed where only one party will renounce the right of inheritance or one party will renounce in favour of another heir. In addition, waiver of inheritance agreements can be made by giving compensation or without compensation.
Onerous Waiver of Inheritance
The word "onerous" literally means compensation, favour. The existence of an onerous waiver of inheritance will come to the fore if any consideration, i.e. compensation, i.e. favour, is provided by the heir to the renouncing reserved share heir during the execution of the onerous waiver of inheritance agreement.
With this agreement, the waiving party obtains an inter vivos consideration in return for his/her waiver. In other words, the benefit to be provided to the waiving party by the heir must occur with the conclusion of the contract while the inheritor is still alive, otherwise it shall not be possible to mention the waiver of an onerous inheritance.
Non-Onerous Waiver of Inheritance
In non-onerous waiver of inheritance, waiving party waives the inheritance without receiving any consideration. In this context, neither the inheritor is obliged to pay an inter vivos consideration nor the waiving heir gains any profit.
Difference Between Onerous and Non-Onerous Agreements
The most significant difference between onerous and non-onerous agreements is in terms of the effect on the descendants. Unless otherwise agreed in the waiver agreement or in an additional agreement, in an onerous waiver of inheritance, the heirs of the waiving party will also lose the title of heirship. However, in non-onerous waiver of inheritance the heirship title of the heirs of the waiving party shall continue. In this context, it is of great importance to determine whether the renunciation is made with or without consideration and whether the consideration is inter vivos.
Validity Terms of Waiver of Inheritance
Waiver of inheritance shall be issued in the form of an official will. In other words, the agreement is required to be made in the presence of a Notary Public. Agreements that are not issued in an official form in the presence of a Notary Public shall be deemed invalid. In addition, both parties who shall conclude the agreement are required to be fully competent. In this context, the parties shall be mentally balanced, not be restricted and be adults.
It is essential to obtain a medical report from a public hospital for both parties and submit it to the Notary Public during the transaction in order to prevent the invalidity of the agreement due to incompetence. In addition, the execution of the agreement in the presence of witnesses who are competent and have a medical report will also prevent invalidity claims.
In Conclusion
The agreement for the waiver of inheritance can be executed with or without consideration between the inheritor and his/her reserved share heir. In order for these agreements to be valid, it is essential that they are issued in the presence of a Notary Public and both parties must be fully competent.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.