In a contract of maintenance until death, one party undertakes to look after and care for the other for the rest of that person's life, and the care creditor undertakes in return to transfer assets or specific values. The contract is subject to a special official form; a promise made within the family or a simple written agreement is not enough. Failure to perform the care, the death of the care debtor, simulation and breach of the reserved portion are different legal grounds. The route and the outcome of each must be determined separately. (1, Articles 611–619)
The parties to the contract and its legal nature
The care creditor is the person who is to receive care and who makes the transfer in return. The care debtor undertakes the duty of care and supervision. The parties do not necessarily have to be relatives. If the care debtor has been designated to appoint an heir, the provisions on inheritance contracts also apply. A transfer of property during life and a benefit to be delivered after death are not the same legal structure. (1, Article 611)
The contract carries uncertainty because the length of the care period cannot be known in advance. The death of the care creditor shortly after the contract does not, on its own, turn the transaction into a gift or a simulation. Conversely, writing care into the text does not prove that a real care relationship was intended. The intent at the date of the contract, the circumstances of the parties and the later performance must be assessed together.
The care creditor does not have to be bedridden at the date of the contract. Securing future care needs is within the function of the contract. However, the parties must have legal capacity, must understand the transaction and must act with free will. A transaction is not invalid merely because of advanced age, and a concrete doubt about capacity cannot be ignored either. (1; 2, Articles 9–16)
How is a valid contract made?
Official form and two witnesses
Under Article 612 of the Turkish Code of Obligations (TBK), even where no heir is appointed, the contract is not valid unless it is made in the form of an inheritance contract. Article 545 of the Turkish Civil Code No. 4721 (TMK) regulates the official form of a will: the parties declare their intentions to the official at the same time, and the document is signed before the official and two witnesses. It should not be assumed that obtaining a signature certification alone, or carrying out some other type of transaction at the land registry, replaces this special form. (1; 2)
Notarial procedures and the registration of the property must be kept separate. For transactions that transfer immovable property and are carried out at the competent land registry office, the land registry legislation, the official deed and witness requirements also apply separately. Article 26 of the Land Registry Law No. 2644 provides that official deeds on ownership and other in rem rights in immovables are prepared by land registry officials. This authority does not allow the validity conditions of the TBK and TMK to be disregarded. [3]
The prohibitions on witnesses and the relationships of the parties should be checked before the transaction. If a translator or special communication support is needed in preparing the contract, the genuine intent must be secured. A health report obtained during drafting does not, by itself, cure other problems of intent or form.
A limited exception for care institutions
Where the contract is made by a care institution recognized by the State, under the conditions set by the competent authorities, a written form may be sufficient. This exception does not apply automatically to every private care business, every carer or every family arrangement. The recognition status of the institution and its compliance with the regulation must be documented. (1, Article 612)
Which points must be clear in the contract?
The property to be transferred must be identified through title, account or other asset information. The timing of the transfer, where the care will be given, hospital and medicine costs, auxiliary staff, the care creditor's customary living conditions and the possibility of relocation should all be stated. To meet changing care needs, the text should not be reduced to a fixed number of meals or visits.
If real estate has been transferred, the statutory mortgage available to the care creditor under TBK Article 613 is also assessed. For the security the law grants “as if to a seller”, the registration and time conditions are particularly important; for statutory mortgages, the three-month registration period under Article 894 TMK, running from the transfer of ownership, must not be overlooked. Writing a right into the contract does not mean that the security was completed in the land registry in every case. (1; 2)
What is the scope of the duty of care?
TBK Article 614 expressly regulates the provision of suitable food and housing and the care and treatment of illness with the necessary diligence. The scope of the performance is determined by the value of the assets received, the care creditor's earlier social position and equity. Care does not have to consist only of sending money, and the care debtor does not have to perform every task personally in every case. The use of helpers is assessed by whether care was properly provided in the end. (1)
Emotional support and a safe living environment may be important in the nature of the relationship. The decision of the 7th Civil Chamber of the Court of Cassation (Yargıtay 7. Hukuk Dairesi) dated December 18, 2023, E. 2022/4574, K. 2023/6313 also explains the housing, nutrition, treatment and emotional support dimensions of care. However, the decision does not say that a certain number of visits is sufficient in every contract. [4]
The care creditor must also not prevent the contract from being performed in good faith. Claims that the care creditor repeatedly rejects reasonable care offers, obstructs them without cause, or later demands unlimited burdens not found in the contract are examined. However, the care debtor saying “I wanted to care” does not, on its own, prove genuine and sufficient performance. The content of the offer, its feasibility and the reason for refusal must be documented.
What route applies when care is not provided?
Establishing the breach and the intolerability of the relationship
Article 617 TBK allows the contract to be ended without notice where, because of a breach of obligation, continuation has become intolerable, or where other important reasons make continuation impossible or unreasonably difficult. Not every minor lapse carries the same weight. Continuing neglect, failure to secure treatment, or a serious threat to safety must be separated from daily disputes that can be remedied. (1)
The care creditor should specify the dates of the events and the performances not rendered. Hospital records, prescriptions, care expenses, service invoices, witnesses and correspondence may be useful. The use of private records obtained unlawfully raises a separate problem. Although the law does not regulate a notice as an unalterable precondition for every important reason, a duly served notice that clarifies the deficiency and the demand may be important as evidence.
Restitution, damages or lifetime income
Where the contract is ended for an important reason, the party at fault must return what it received, and the faulty party pays appropriate compensation for the loss of the other party. However, the judge may end the shared household life and grant the care creditor a lifetime income. Therefore, the outcome of each dispute is not limited to the return of the property. (1, Article 617)
The study by Gülşah Sinem Aydın discusses the retroactive effects of Article 617 on restitution, and the judge's option to grant a lifetime income, even though the law uses the term “termination”. For this reason, a petition should not rest only on the statement that “the contract should be terminated”; restitution, registration, damages or an appropriate alternative claim should each be framed on its own conditions. (5, pp. 336–373)
What happens if there is a major imbalance between the performances?
Article 616 TBK allows the contract to be ended on six months' prior notice where there is a significant imbalance between the performances and the party receiving more cannot prove that the transaction was intended as a gift. The calculation and equalization method envisaged by the law is taken into account. These six months are not the mandatory waiting period for the route of termination without notice for an important reason under Article 617. (1)
An imbalance cannot be established merely because the care creditor died early, or by looking at the current market value of the property. The circumstances in which the contract was formed, the assumption of the lifelong care risk and the performances made are important. The other party may argue that the transaction was intended as a gift; this argument is also assessed under the proof and calculation conditions of the law.
If the care debtor dies first, does the title come back?
The death of the care debtor does not automatically erase all the consequences of the contract. Article 618 TBK gives the care creditor the option of seeking termination of the contract within one year from the death. In that case, the value that can be claimed is a monetary claim determined by the amount that could be taken from the bankruptcy estate if the care debtor had gone bankrupt. It cannot be said that the transferred property will always be returned in kind on the ground of death alone. (1)
The decision of the 7th Civil Chamber of the Court of Cassation dated November 25, 2024, E. 2024/4319, K. 2024/5243 was rendered in a dispute containing this distinction. In line with an earlier reversal, termination and damages were accepted; the rejection of the title cancellation claim was not treated as the failure of the entire action. The final review made a correction specifically concerning costs and attorney's fees. The decision shows the importance of framing the claim in line with Article 618 TBK when the care debtor dies. (6)
If there are other grounds, such as a serious breach of the contract before death or a simulated transfer to a third party, these are examined separately. Where different grounds appear in the same file, the conditions of each and the legal result sought must be explained separately.
On what grounds may heirs bring an action?
Non-performance of care and the heir's own right
A distinction must be drawn between the care creditor's personal right of termination, which is to be exercised during life, and the heirs' claims based on their own inheritance rights. In the Court of Cassation's decision of December 18, 2023, the fact that no duly filed action had been brought during the testator's lifetime to annul the care contract was given weight; the heirs' objection to registration on the sole ground that they had not been cared for was not accepted. [4]
This approach does not mean that heirs can never bring an action. Incapacity, defects of form, a transaction concealing the true intent, and breach of the reserved portion are separate grounds. If the testator exercised a right or brought an action during life, the consequences of that for the heirs are evaluated differently.
Simulation by the deceased and abatement
If a transaction actually intended as a gift is presented as a transfer in return for care, simulation by the deceased (muris muvazaası) may arise. A contract with a genuine care purpose and reciprocal performance is not simulated merely because it fails to satisfy an heir. The share of the property in the whole estate, the need for care, the relationship between the parties, the care actually provided and the genuine intent behind the transfer are assessed together.
TBK Article 615 preserves the heirs' right of abatement (tenkis) and the creditors' rights of avoidance. However, it is not correct to treat the entire transaction, which contains genuine reciprocal performance, as an automatic gift and to include it in the abatement calculation. The legal conditions of a gratuitous transfer or a breach of the reserved portion must be concretely specified. If the care creditor, as the maintenance obligor, has become unable to meet that obligation because of the contract, Article 615 contains a separate protection for those who are left without maintenance. (1; 2, Articles 560 et seq.)
Case file, court and deadline check
For claims concerning the in rem title, such as cancellation and re-registration of title, the exclusive venue is the place where the immovable is located; for contract and money claims, the general and special venue rules are considered. Where there is no special rule on the subject matter, the civil court of first instance has jurisdiction. Special circumstances, such as a professional care institution or a consumer transaction, require separate examination of jurisdiction and of any pre-application procedure. (7, Articles 2, 6, 10, 12)
| Legal ground | Time limit or condition to check in particular |
|---|---|
| TBK Article 616, material imbalance | Notice six months in advance; statutory calculation and equalization. |
| TBK Article 617, important reason | Not to be confused with the notice route; the event, the breach and the claim are assessed without delay. |
| TBK Article 618, death of the debtor | Termination claim within one year from the death. |
| Abatement due to the reserved portion | One-year period from knowledge under Article 571 TMK and a ten-year outer limit. |
| Capacity, form or other invalidity | A different regime depending on whether the transaction is inter vivos or mortis causa. |
Before filing, prepare the official contract and its annexes, the title records, the records of the care actually provided, health documents, notices and service documents, payment receipts, and information about the parties and, if necessary, the heirs. Filing an action does not automatically prevent the transfer of title. For an interim measure, a concrete risk must be explained; security, court fees and expert fees are calculated separately. After the decision, finality, the land registry procedure or the collection of the monetary claim are handled separately. (7, Articles 389–392)
The general appeal period against a decision is two weeks from notification; an appeal on points of law is assessed according to the type of the decision and the conditions of finality. Whether mediation is a condition precedent to suit must be checked separately, depending on whether the transaction falls within consumer or other special disputes. In cases with a foreign element, the law applicable to the contract, to the transfer on death and to the in rem rights in the immovable in Türkiye may be subject to different rules. (7, Articles 345, 361; 8, Articles 20–21, 24)
Conclusion
In a contract of maintenance until death, the issue is not only to whom a property is left. The valid form, the actual scope of care, the security, the gravity of the breach and the ground for termination must be assessed together. Separating the care creditor's personal right from the heirs' claims of simulation or abatement prevents wrong claims and loss of time limits.
For legal support, you may also see our page on inheritance law and inheritance litigation.
Frequently Asked Questions
Can the contract be prepared by hand alone?
As a rule, no. The special official form under Article 612 TBK is required. The limited written-form exception for care institutions recognized by the State is assessed separately.
Must the care creditor be ill on the date of the contract?
No. The contract may serve the purpose of securing future care needs. The genuine intent and the conditions of the contract are still examined.
Does sending money alone satisfy the duty of care?
Not in every case. The contract assesses the person's needs together with the duties of housing, food, care and treatment under Article 614 TBK.
If the care debtor dies, can the property be taken back immediately?
That result is not automatic. Article 618 TBK provides a one-year termination option and the result of a special monetary claim.
Must six months be waited out before care can be stopped?
No. The six-month notice relates to the imbalance route under Article 616. Termination for an important reason is separately regulated in Article 617.
Can heirs have the contract cancelled simply by saying “he or she was not cared for”?
The care creditor's personal right and the heirs' rights must be distinguished. The right exercised during life, the action brought, and the heirs' own grounds of invalidity, simulation or abatement are examined separately.
Does the contract remove the reserved portion?
No. However, not every transaction with genuine reciprocal performance is automatically treated as a gift. The legal conditions for abatement must be concretely shown.
Can security be obtained for a transferred house?
Article 613 TBK provides a statutory mortgage. Registration, time limits and other conditions must be assessed separately at the time of the transaction.
Sources and legal bases
- Turkish Code of Obligations No. 6098, Articles 611–619. Current consolidated text.
- Turkish Civil Code No. 4721, in particular Articles 532–545, 560–571, 893–894. Current consolidated text.
- Land Registry Law No. 2644, Article 26. Current consolidated text.
- 7th Civil Chamber of the Court of Cassation (Yargıtay 7. Hukuk Dairesi), December 18, 2023, E. 2022/4574, K. 2023/6313, reversal. Full text, Kanun Yolu publication.
- Gülşah Sinem Aydın, “Termination of the Contract of Maintenance Until Death under Article 617 of the Turkish Code of Obligations” (“Ölünceye Kadar Bakma Sözleşmesinin Türk Borçlar Kanunu'nun 617. Maddesine Dayalı Olarak Sona Ermesi”), Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi, 2018, 24(1), pp. 336–373. Publication and full text.
- 7th Civil Chamber of the Court of Cassation (Yargıtay 7. Hukuk Dairesi), November 25, 2024, E. 2024/4319, K. 2024/5243, affirmance with correction; previous reversal and final review sections. Full text, Kanun Yolu publication.
- Law No. 6100 on Civil Procedure (Hukuk Muhakemeleri Kanunu). Current consolidated text.
- Law No. 5718 on Private International Law and Procedure (Milletlerarası Özel Hukuk ve Usul Hukuku Hakkında Kanun). Official text.