After a spouse’s death, a claim to remain in the family residence or to acquire it is not merely a matter of calculating the inheritance share. Articles 240 and 652 of the Turkish Civil Code provide for different offsetting and rights regimes. It must be determined at the outset for which route the conditions are met.
How are the two allocation (özgüleme) routes distinguished?
| Basis | Right against which it is offset | Main option |
|---|---|---|
| Article 240 | Participation claim | Usufruct or residence in the home; ownership for a justified reason |
| Article 652 | Inheritance share | Ownership of the home and household furnishings; a different right of use for a justified reason |
The order of the rights and their conditions are not the same. Under Article 240, completing the missing amount and the purpose of continuing the former way of life are significant. Under Article 652, the link with the estate and the inheritance share comes to the fore. The absence of a right under one route does not necessarily mean that the other is also closed. [1]
Why do ownership and use of the home matter?
It is examined whether the home belongs to the deceased spouse or to the estate, whether the spouses lived there together, and the position of other homes and shares. The parts needed for a profession or craft and the special provisions on agricultural property may also affect the outcome. The existence of a family residence annotation alone does not prove all the conditions for allocation.
Can the heirs claim compensation for use?
The surviving spouse’s presence in the home does not in every case give rise to a right of free use or in every case to a debt of compensation for use. The basis of the existing right, the period of the claim and the allocation action are examined. If the outcome of the other action matters in a file on dissolution of co-ownership or compensation for use, a stay pending a preliminary question is considered.
Choice of claim and court
A claim under Article 240 based on the liquidation of the matrimonial property regime is assessed in the family court (aile mahkemesi); where no family court has been established, in the civil court of first instance designated to act in that capacity. An allocation claim under Article 652 based on the partition of the inheritance falls within the subject-matter jurisdiction of the civil court of peace (sulh hukuk mahkemesi). The right against which the claim is asserted by offsetting should be explained, as it bears on the choice of court. [1, 2, 3] Instead of listing all the rights in an unclear way in the same petition, the basis of the right sought, its value and the manner of offsetting should be explained. The title deed, the certificate of inheritance, and the death and actual-use records should be prepared.
Related articles: How Is Property Divided in a Divorce? A Guide to Matrimonial Property Regime Actions; On a Spouse’s Death, Property Division or Inheritance First? Rights of the Surviving Spouse and Heirs; Can the Family Residence Be Sold Without the Spouse’s Consent? Annotation, Cancellation of Title and Third Party; Spouses’ Rights in a Jointly Titled Home: Division, Compensation for Use and Dissolution of Co-Ownership.
Frequently asked questions
Which rights of the surviving spouse to reside in the family residence or to acquire it should be examined?
Article 240 of the Turkish Civil Code regulates, by offsetting against the participation claim, usufruct or the right of residence in the home and, if the conditions are met, ownership. Article 652, on the other hand, concerns allocation by offsetting against the inheritance share. The basis, the court with subject-matter jurisdiction and the offsetting calculation are different. Statutory limitations such as the home’s belonging to the deceased spouse, living together and professional use should be examined.
Can a declaration be sought after death that the property was a family residence?
Determining the character of a family residence may carry legal interest for the surviving spouse’s allocation claim. Since the marriage ends with death, the claim is not framed in the same way as the annotation protection during a continuing marriage. Address records, actual living arrangements, bills and other homes are assessed. In an independent declaratory action, the current legal interest and the right to be exercised must be explained.
Can compensation for use be claimed from a surviving spouse who requests that the home be allocated to him or her?
An allocation claim does not automatically provide free use for every kind of use; nor is the heirs’ claim automatically accepted merely because the home is occupied. The legal basis of the use, the period of the claim, the heirs’ wish to benefit and the pending allocation file are examined. If the outcome of the allocation affects the action for compensation for use, a stay pending a preliminary question is considered. Different legal bases on the same subject should be kept apart.
Can a surviving spouse with no participation claim rely on another legal basis for the home?
If there is no participation claim, the conditions of the offsetting route under Article 240 may not be met. On the other hand, a surviving spouse who is an heir may, if the conditions are met, consider the route of offsetting against the inheritance share under Article 652. The two provisions are not the same right; the claim and the choice of court should be made accordingly. The capacity as heir, the home’s belonging to the estate and the difference in value are examined.
This article is for general legal information. In a specific dispute, the event dates, documents, type of claim and time limits are assessed together.
Sources and legal bases
- Law No. 4721, Turkish Civil Code (Türk Medeni Kanunu)
- Law No. 6100 on Civil Procedure (Hukuk Muhakemeleri Kanunu)
- Law No. 4787 on the Establishment, Duties and Trial Procedures of Family Courts (Aile Mahkemelerinin Kuruluş, Görev ve Yargılama Usullerine Dair Kanun)