Right of Action of Those Who Became Heirs Later in Decedent Simulation: Court of Cassation Decisions on Spouses, Children and Adopted Children

A person who was not in the position of an heir on the date on which the decedent transferred the immovable may bring an action for cancellation and re-registration of title based on decedent simulation (muris muvazaası) if he or she later acquired the status of heir. Nevertheless, the right of action and the acceptance of the action on the merits are different things. The fact that, on the date of the transaction, the person who later became an heir was not yet a spouse, child or adopted child does not on its own require the action to be dismissed; however, whether the decedent acted on that date with the aim of diverting assets from an heir must be proven separately. In particular, the absence, on the date of the transfer, of another heir from whom assets were meant to be diverted is a decisive fact that has led to the dismissal of the action in some decisions of the Court of Cassation (Yargıtay). This distinction cannot be resolved without examining the dates of the transaction, of heirship and of death together.

What is decedent simulation and why does it give rise to a special right of action?

Decedent simulation is the transfer by the decedent of an immovable registered in the land registry, which he or she actually wished to give as a gift, under the appearance of a sale or, under certain conditions, of a contract of maintenance until death, with the aim of defeating his or her heirs’ inheritance rights. The apparent transaction does not correspond to the real intention of the parties, and the concealed gift is not made in the official form required for the transfer of ownership of an immovable. The legal assessment is made together with the principle of real and shared intention in Article 19 of Law No. 6098, the Turkish Code of Obligations (TBK), Article 706 of Law No. 4721, the Turkish Civil Code, Article 237 of the Turkish Code of Obligations and Article 26 of the Land Registry Law No. 2644.

The unification-of-case-law decision of the Court of Cassation (Yargıtay İçtihadı Birleştirme Kararı) dated April 1, 1974, E. 1974/1, K. 1974/2 is the fundamental precedent for this dispute. According to the decision, heirs whose inheritance rights have been infringed may, regardless of whether they hold a reserved portion, request the cancellation of the land registry entry by asserting that the apparent contract is simulated and that the concealed gift is invalid as to form. Here, the basis of the right of action is not being a party to the invalid contract made by the decedent, but the infringement of the heir’s own inheritance right. [1]

Not every gratuitous benefit or sale to a relative is decedent simulation. If the immovable was actually transferred for consideration, if the defendant transferee has the economic means, or if the transaction rests on a real and reasonable purpose, the mere reduction of the heirs’ shares does not prove simulation. Likewise, the decedent’s disposing of his or her assets during his or her lifetime does not in itself constitute unlawfulness.

Which date governs heirship: the date of transfer or the date of death?

Answering this question by reference to a single date is not sufficient. The date of death matters for the status of heir and the acquisition of the inheritance; the date of the transfer matters for the assessment of simulation and of the intention to divert assets.

Under Article 575 of the Turkish Civil Code, the succession opens upon the decedent’s death. Article 580 of the same Code, as a rule, sets the requirement that, in order to be an heir, a person must have the capacity to inherit and be alive at the moment of the decedent’s death; Article 582 provides that an unborn child becomes an heir if born alive. Under Article 599, the heirs acquire the inheritance as a whole by operation of law upon the decedent’s death. [2]

By contrast, deception or the aim of diverting assets from an heir, which is the essential element of simulation, is investigated by taking into account the circumstances at the time the transaction was made. Accordingly, becoming an heir later is not in every case a bar to bringing an action; but an intention that did not exist on the date of the transaction cannot be presumed to have existed merely because of an heirship relationship established later.

Can a spouse who married later bring an action against an earlier transfer of title?

Yes, if the conditions are met. The fact that the decedent was not married to the plaintiff on the date he or she transferred the immovable does not automatically eliminate the claim of decedent simulation. The spouse who married later must be an heir on the date of death and must establish the simulated nature of the transfer with evidence.

In the decision of the Civil General Assembly of the Court of Cassation (Yargıtay Hukuk Genel Kurulu) dated March 1, 2000, E. 2000/1-126, K. 2000/143, it was accepted that a person whom the decedent married or adopted after the transfer, as well as his or her child conceived later, may also benefit from the 1974 Unification-of-Case-Law Decision. The Civil General Assembly emphasized that the plaintiff’s not being an heir on the date of the transaction does not on its own bar the action, and that the merits of the dispute must be investigated. [3]

In the decision of the 1st Civil Chamber of the Court of Cassation (Yargıtay 1. Hukuk Dairesi) dated March 11, 2019, E. 2016/6514, K. 2019/1735, the share in the immovable had been transferred by the decedent to his son seven days before the marriage with the plaintiff. The Chamber did not consider the plaintiff’s not being a spouse on that date sufficient to dismiss the action; it reversed the judgment of dismissal on the ground that the real intention in the transfer and the evidence had to be examined. [4]

Nevertheless, a different result is also possible for transfers made before the marriage. In the decision of the 1st Civil Chamber of the Court of Cassation dated November 10, 2021, E. 2021/2044, K. 2021/6680, the majority, noting that on the date of the transfer there were no heirs other than the transferee children, upheld the dismissal decision based on the finding that the intent to divert assets had not been proven. The dissenting opinion, by contrast, advocated broader protection, relying on the facts that the transfer was made shortly before the marriage and that the succession opens on the date of death. The dissenting opinion is not the majority judgment. [5]

For this reason, with respect to the new spouse, the decisive examination is not only the date on the marriage certificate. The existence of children from a previous marriage, when preparations for the marriage began, the decedent’s relationship with the transferees, whether any payment was made, by whom the immovable was used and whether there was a real need for the sale should be assessed together.

Can a child born or conceived after the transfer bring an action?

A child of the decedent who had not yet been born on the date of the transaction may bring an action against an earlier simulated transfer if the conditions of birth and heirship are met. In this respect, creating a difference in the right of action between a child existing on the date of the transaction and a child born later solely because of the time of birth has not been adopted in the relevant decisions of the Civil General Assembly and the 1st Civil Chamber. [3] [4]

Two situations must also be distinguished with respect to the child. A child alive on the date of death may be a direct heir if the conditions of heirship are met. A child not yet born at the moment of death, by contrast, becomes an heir under Article 582 of the Turkish Civil Code provided that he or she is born alive. The child’s later birth does not automatically prove that the earlier sale was simulated; the real intention on the date of the transfer must still be established. [2]

Does a person adopted after the transfer have a right of action?

Article 500 of the Turkish Civil Code provides that the adopted child and his or her descendants inherit from the adoptive parent like blood relatives. If the legal effects of the adoption arose before the decedent’s death and the status of heir continues, the adopted child may also assert the right to bring an action against simulated transfers made before the date of the transaction. [2]

The decision of the Civil General Assembly dated November 6, 1996, E. 1996/1-596, K. 1996/737 and the decision dated March 1, 2000 are important examples regarding the right of action of a person adopted after the transaction. Even so, in these decisions too, the existence of decedent simulation, that is, the transfer of the immovable with the intention of making a gift and with the aim of diverting assets from the heirs, is a substantive issue that must be assessed separately. [3] [6]

In particular, in an action concerning a transfer made long before the date of adoption, whether there were other heirs from whom assets were meant to be diverted on the date the transaction was carried out, and the real economic reason for the sale, are strong defenses that the opposing party may raise. The existence of the adoption relationship is, on its own, neither a reason for winning nor a reason for dismissal.

The most critical distinction: was there another heir from whom assets were meant to be diverted at the time of the transfer?

This is where the divergence in judicial practice is focused. A person’s becoming an heir later and the transfer qualifying as decedent simulation are two separate subjects of proof.

In the Civil General Assembly’s 2000 decision, the fact that other heirs existed on the date of the transfer was assessed within the framework of the dispute, and the later heir’s right of action was recognized. By contrast, in the Civil General Assembly’s decision dated October 10, 2012, E. 2012/1-492, K. 2012/696, in an action brought by a spouse who married later, it was concluded, taking into account the family and property relationships on the date of the transaction, that it had not been established that the decedent acted with the aim of diverting assets. [3] [7]

The majority assessment in the 2021 decision of the 1st Civil Chamber is also important for this second approach. The dissenting opinion, by contrast, gave greater weight to the possibility that an intention to divert assets from the later spouse could be proven by concrete facts. This debate shows that the proposition there is a right of action should not be turned into the conclusion the action will necessarily be accepted. [5]

How should the Court of Cassation decisions be read together?

The 1974 Unification-of-Case-Law Decision: basic protection

The basic issue addressed by the decision of April 1, 1974, E. 1974/1, K. 1974/2 is that persons whose inheritance rights are harmed because the decedent concealed a real intention to make a gift under the appearance of a sale may request cancellation and re-registration of title even if they do not hold a reserved portion. This decision does not apply automatically to all gratuitous transfers. [1]

Civil General Assembly 2000: becoming an heir later does not on its own close the route to an action

The decision of March 1, 2000, E. 2000/1-126, K. 2000/143 did not treat the plaintiff’s not being an heir on the date of the transaction as an absolute bar to the action in cases of marriage, adoption or the conception of a child after the decedent’s transfer. The thrust of the reversal is that the merits of the case be examined; it is not that the transaction be accepted as simulated and registration of title be ordered automatically. [3]

Civil General Assembly 2012: the real aim of diverting assets must be determined in the specific case

The decision of October 10, 2012, E. 2012/1-492, K. 2012/696 assesses the debate on the later spouse’s right of action together with the substantive basis of the action; it gives importance to the position of the heirs on the date of the transfer, the dates of the transaction and of the marriage, and the history of how the immovable was acquired. It thus becomes clear that, despite the existence of the 2000 decision, simulation cannot be found in every case. [7]

1st Civil Chamber 2019 and 2021: different results, different material facts

In the decision of March 11, 2019, E. 2016/6514, K. 2019/1735, a reversal was ordered in favor of the plaintiff who married later, on the ground of incomplete examination. In the decision of November 10, 2021, E. 2021/2044, K. 2021/6680, by contrast, the majority adopted the reasoning that an intent to divert assets could not be spoken of, because there were no heirs other than the transferees on the date of the transfer. These two decisions show that the same general principle cannot be applied mechanically to every file. [4] [5]

By whom and against whom is a decedent simulation action brought?

The action is brought by the person whose inheritance right has been infringed and who has the status of heir on the date of the action. It is not required that the plaintiff be an heir entitled to a reserved portion. Since the basis of this action is a right belonging to the heir himself or herself, it is, as a rule, not necessary for all heirs to be plaintiffs together as regards a request for cancellation and registration in proportion to the plaintiff’s own inheritance share. However, where the return of the immovable to the estate or claims concerning the entire estate are at issue, joint ownership, the proper composition of the parties and whether a representative should be appointed for the estate must be assessed separately.

The defendant is, as a rule, the registered owner in whose favor the simulated transaction was made, or the relevant person holding a right over the record in dispute. If the immovable later passed to third parties, examining the chain of title is mandatory. Because of the provisions on reliance on the land registry, good faith and wrongful registration in Articles 1023 and 1024 of the Turkish Civil Code, it cannot be asserted that all subsequent transfers will be cancelled automatically. In that case, which claim may be directed against whom must be determined according to the particular circumstances of the file. [2]

The right of action of a person who has validly disclaimed the inheritance, has been disinherited, has lost inheritance rights, or has no inheritance right because of a valid inheritance waiver agreement is examined separately. A certificate of inheritance alone may not resolve all disputes; the decedent’s population records, previous marriages, parentage and decisions affecting inheritance rights are assessed together.

Court with subject-matter and territorial jurisdiction, time limits and interim injunction

In a request for cancellation and registration of title, the court with subject-matter jurisdiction is, as a rule, the civil court of first instance (asliye hukuk mahkemesi). For a claim concerning real rights in the immovable, the exclusive jurisdiction of the court of the place where the immovable is located is assessed under Article 12 of the Code of Civil Procedure; for subject-matter jurisdiction, Article 2 of the same Code is taken as the basis. In claims involving more than one immovable, different provinces, tiered claims or the entire estate, the nature of the dispute should be examined anew. [8]

For requests for cancellation and registration of title based on decedent simulation and arising from a claim of a transaction void from the outset, as a rule no general statute of limitations or time limit for bringing an action (hak düşürücü süre) tied merely to the passage of time is provided. However, understanding this principle as meaning that an action may be brought without any time limit in all land registry disputes may cause a serious loss of rights. In particular, if the dispute rests on a legal ground predating the cadastral determination, the 10-year time limit for bringing an action running from the finalization of the cadastral minutes under Article 12(3) of the Cadastre Law No. 3402 may come into play. In a 2025 decision of the 1st Civil Chamber of the Court of Cassation, a claim of decedent simulation predating the cadastre was examined within this framework. Different time limits may also apply to abatement under Article 571 of the Turkish Civil Code, and to compensation claims and claims based on other legal grounds. [2] [9]

If there is a risk that the immovable will be transferred to a third party during the action, placing an interim injunction on the land registry record may be considered within the conditions of Article 389 et seq. of the Code of Civil Procedure. Bringing an action does not by itself prohibit the transfer of title; the injunction order and the scope of its implementation are separate legal acts. [8]

How is proof made? Which documents are decisive when preparing the file?

The party asserting decedent simulation must substantiate, within the framework of Article 19 of the TBK and the general rules of proof, the discrepancy between the apparent transaction and the real intention, and the aim of diverting assets from the heir. Since the heir is not a party to the contract but is in the position of a third party whose inheritance right has been harmed, he or she may raise the simulation claim with lawful evidence, including witnesses. However, a single witness statement, a single price difference or a kinship relationship alone may often not be sufficient.

In preparing the action, it is useful to examine the following records together:

• The entire chain of title after the first acquisition of the immovable, official sale/transfer deeds, and usufruct and other real-right records.
• The real value of the immovable on the date of the transfer, the price shown in the official deed, and bank movements showing whether the payment was actually made.
• The transferee’s economic situation, ability to purchase the immovable, income records and the source of the price.
• The decedent’s need to sell, debt situation, health and care needs and, if any, the actual performance of care services.
• Identity and parentage records of the children, the spouse and other persons in the position of heir existing at the time of the transfer; documents relating to a marriage or adoption relationship established later.
• Whether the decedent continued to use the immovable after the transfer, to whom the rental income was paid and with whom the usufruct remained.
• Correspondence between the parties, statements, witness accounts and a chronology of events that complement one another.

In particular, the dates of transfer–marriage–death should be shown in a single chart. If the transfer is very old, the application of old legislation, the availability of documents and economic valuation may also present problems. In its 2019 decision, the 1st Civil Chamber of the Court of Cassation also emphasized that, instead of looking only at the date of heirship, the evidence that would shed light on the real intention must be assessed as a whole. [4]

Decedent simulation, abatement and equalization in inheritance are not the same thing

A request for cancellation and registration of title based on decedent simulation rests on the claim of an invalid apparent transaction and a concealed gift made in breach of form requirements. Abatement, as a rule, aims to reduce to the statutory extent the part of a valid benefit that infringes the reserved portion. Equalization in inheritance, on the other hand, concerns taking into account, in the distribution among heirs, certain inter vivos benefits for which the statutory conditions are met.

For this reason, a direct decedent simulation action may not be appropriate for every transfer without consideration. The decedent buying an immovable in his or her own name and then transferring it, and the decedent paying the price and having the immovable registered directly in another person’s name, may be subject to different assessments as regards the direct scope of application of the 1974 Unification-of-Case-Law Decision. The statement of claim should set out claims that suit the nature of the events, are consistent with one another and are procedurally proper. [1]

What defenses can the defendant raise?

The balance of proof in the action does not consist only of what the plaintiff submits. The defendant may establish with documents that the sale price in the official deed was actually paid, that the transaction was for consideration, the transferee’s purchasing power, the decedent’s real purpose of disposition, or the asset arrangements the decedent made during his or her lifetime. In a contract of maintenance until death, whether the obligations were actually performed, as well as the relationship between the need for care and the obligations, is examined.

Against a spouse who married later, it may in particular be argued that there was no other heir on the date of the transfer and that the decedent did not yet have an aim of diverting assets in view of a future marriage. In response, the plaintiff should present concrete information regarding other persons in the position of heir, the timing of the marriage preparations and the real intention in the transaction. The point at which the majority and the dissenting opinion in the 2021 decision diverged shows the importance of this defense in the specific case. [5]

In files in which several immovables changed hands on different dates, each transaction should be addressed separately, rather than linking all the sales to a single intention. A finding of simulation for one immovable does not automatically prove that another immovable was also transferred by simulation.

Related articles: Title Cancellation and Registration Due to Decedent Simulation: Diverting Assets from Heirs; Simulated Transfer of Immovable Property and Title Cancellation: Party Simulation, Proof and Third Parties; Inheritance Rights of an Adopted Child: Biological Family, Adoptive Parent and Inheritance Shares; Inheritance Rights of the Surviving Spouse: Liquidation of the Matrimonial Property Regime, Participation Claim and the Family Residence

Conclusion

A spouse, child or adopted child who became an heir after the date of the transaction cannot be deemed deprived of the right of action based on decedent simulation merely on the ground that he or she was not an heir on the date of the transfer. Nevertheless, being able to bring an action does not guarantee that the transfer will be accepted as simulated. The date of death must be investigated with regard to heirship and the share, and the date of the transfer with regard to the existence of simulation and the aim of diverting assets from the heir. The existence of other heirs at the time of the transfer, the real economic reason for the sale and interrelated family events are factors that can change the outcome of the file. A sound legal assessment depends on examining this temporal distinction together with land registry, population, payment and other evidence.

Frequently Asked Questions

Can I bring an action if my father transferred his immovable before I was born?

If you have inheritance rights on the date of the decedent’s death and can prove that the transfer qualifies as decedent simulation, you may have a right of action. Having been born later is not on its own a bar to an action; however, the aim of diverting assets from the heir on the date of the transaction is investigated separately.

Can the second spouse bring an action over a house transferred before the marriage to the children from a former spouse?

Yes, if the second spouse is an heir on the date of death and bases the simulation claim on concrete evidence, he or she may bring an action. However, in particular the absence of heirs other than the transferees at the time of the transfer and the real economic reason for the transaction may create a risk as regards acceptance of the action on the merits.

Can an adopted child bring an action over an immovable sold before the adoption?

If the legal effects of the adoption relationship exist at the decedent’s death and the person is an heir, he or she may bring an action concerning the earlier transfer. For the action to be accepted, all elements of decedent simulation must be proven.

Can an heir bring a decedent simulation action while the decedent is alive?

The right of action based on this legal ground and arising from the infringement of the inheritance right arises, as a rule, upon the decedent’s death. During the decedent’s lifetime, the same action cannot be brought on the basis of an expectation of becoming an heir.

Must all heirs be plaintiffs together in a decedent simulation action?

In actions in which a person requests cancellation and registration in proportion to his or her own inheritance share, it is, as a rule, not required that all heirs act together. However, for claims for return to the estate and claims concerning the entire estate, the proper composition of the parties and joint ownership are assessed separately.

Is there a statute of limitations for bringing a decedent simulation action?

As a rule, no general statute of limitations or time limit for bringing an action applies to cancellation and registration of title based on simulation. However, in disputes based on legal grounds predating the cadastre, the ten-year time limit for bringing an action under Article 12(3) of the Cadastre Law may come into play; the time limits for abatement, compensation and other claims are also examined separately.

Sources and legal bases

1. Grand General Assembly for Unification of Case Law of the Court of Cassation (Yargıtay İçtihadı Birleştirme Büyük Genel Kurulu), April 1, 1974, E. 1974/1, K. 1974/2. Text of the decision.
2. Ministry of Justice (Adalet Bakanlığı), Law No. 4721, Turkish Civil Code (in particular Articles 500, 575, 580, 582, 599, 706, 1023–1024; for abatement, Article 571). Official legislation; Law No. 6098, Turkish Code of Obligations, Articles 19, 237. Official legislation.
3. Civil General Assembly of the Court of Cassation, March 1, 2000, E. 2000/1-126, K. 2000/143. Text of the decision.
4. 1st Civil Chamber of the Court of Cassation, March 11, 2019, E. 2016/6514, K. 2019/1735. Text of the decision.
5. 1st Civil Chamber of the Court of Cassation, November 10, 2021, E. 2021/2044, K. 2021/6680 (distinction between the majority and the dissenting opinion). Text of the decision – De Jure (access may require a logged-in session).
6. Civil General Assembly of the Court of Cassation, November 6, 1996, E. 1996/1-596, K. 1996/737. Text of the decision.
7. Civil General Assembly of the Court of Cassation, October 10, 2012, E. 2012/1-492, K. 2012/696. Text of the decision.
8. Ministry of Justice, Law No. 6100 on Civil Procedure (in particular Articles 2, 12, 190 and 389 et seq.). Official legislation.
9. 1st Civil Chamber of the Court of Cassation, March 6, 2025, E. 2024/5716, K. 2025/1197; debate on decedent simulation predating the cadastre and the time limit for bringing an action under Article 12(3) of Law No. 3402. Ministry of Justice UYAP case-law text.