An inheritance contract is a mortis causa disposition, subject to a special form, by which the decedent undertakes to leave their estate or a specific asset to the other party to the contract or to a third person. Unlike a will, it creates a binding contractual relationship. A signed text alone is not sufficient for validity; the formal requirements of a will and the special procedure set out in the law are required. However, the contract does not transfer the assets to the other party today, and it does not automatically prohibit all of the decedent's transactions during their lifetime. (1, Art. 527, 545)
What need does an inheritance contract meet?
In estate planning, a person may wish to determine who will acquire what, and in what capacity, after their death. This can be done unilaterally by will, or the person may conclude a binding inheritance contract with the other party. The contract may contain the appointment of an heir, the bequest of specific property or other provisions connected with them. It is also possible to agree that the decedent receives payment or care in return during their lifetime. (1, Art. 516–517, 527, 545–547)
Clarifying the aims determines the legal effect of the contract. The sentence "After my death, the house will be yours" and the sentence "I appoint you as heir to half of my estate" do not create the same rights. The first is assessed as a bequest of specific property; the second as the appointment of an heir. What matters is not the title of the contract but all of its provisions and the parties' real intention. The interpretation of ambiguous expressions in mortis causa dispositions is addressed in the article on interpreting a will.
Heir appointment versus bequest of specific property
An appointed heir acquires the status of heir over the whole estate or over a specified share of it. The transfer of the estate, joining the co-ownership and liability for debts then become relevant. A person to whom specific property is bequeathed is, as a rule, a legatee who may demand performance of that property or right; for this reason alone, they do not become an heir to the whole estate. (1, Art. 516–517, 599–600)
This difference is decisive for the debts of the estate. If the parties intend only the transfer of a particular home, they should not make an appointment that would expose the person to all debts of the estate. Conversely, if the real aim is to take part in the estate as an heir, a bequest of specific property alone may not meet that need. The consequences of disclaimer, liability and transfer must be explained when the contract is drafted.
How does it differ from a will, a waiver and a partition agreement?
| Transaction | Core function | Key form and effect |
|---|---|---|
| Will | Unilateral mortis causa disposition | Made in one of the types set out in the law; the possibility of revocation is different. |
| Positive inheritance contract | Appointment of an heir or undertaking to bequeath property | Formal requirements and contractual binding force. |
| Waiver of inheritance contract | Renunciation of an expected inheritance right | Made with the decedent; consideration and effect on descendants are examined separately. |
| Estate partition agreement | Division of an opened estate among heirs | Written form under Art. 676 TMK; not the same as the decedent's planning during their lifetime. |
| Assignment of an inheritance share | Disposition over a share in an opened estate | TMK Art. 677; the form differs for assignment among heirs and to a third person. |
A contract concerning an estate that has not yet opened, concluded between a prospective heir and another heir or a third person, requires separate consideration of the condition in TMK Art. 678 concerning the participation or consent of the decedent. Treating every inheritance-related contract as an inheritance contract under Art. 545 leads to a wrong result. [1] For the types of waiver, see the article on the inheritance waiver contract.
Who can enter into an inheritance contract?
To enter into an inheritance contract, the law requires capacity of discernment, full age and the absence of guardianship. The age-of-fifteen requirement provided for wills cannot be carried over to inheritance contracts. In particular, the legal capacity of the party making the mortis causa disposition must be examined at the time of the transaction. Whether the other party merely accepts the contract or also disposes of their own estate may raise separate capacity assessments. (1, Art. 502–503)
A mortis causa disposition is strictly personal; a representative cannot form the decedent's final will in their place. The capacity in which the other party takes part and the possibility of representation are also assessed separately. Advanced age alone is not incapacity. On the other hand, the presentation of an identity document alone does not remove a concrete doubt about capacity of discernment. Where necessary, a medical assessment as of the date of the transaction, an interpreter and an accessible communication arrangement should be provided.
How is the contract drawn up?
Under TMK Art. 545, the contract is made in the form of an official will. The parties declare their wishes to the competent official at the same time; the contract is drafted and signed in the presence of the official and two witnesses. The rules on the competent official, the prohibition on participation and the witness requirements applicable to official wills are taken into account. In practice, drafting before a notary is common; however, merely certifying a signature is not sufficient. (1, Art. 532, 536, 545)
Choosing witnesses is not a mere formality. The legal restrictions on capacity, literacy and kinship must be checked. Gifts made to persons who take part in the transaction, or to relatives named by law, may also raise questions of invalidity. Completing a signature afterwards, or presenting statements made at different times as a single text, does not by itself satisfy the special form.
The preparation file should contain identity and civil registry details, a list of assets, the precise land registry details of immovable property, earlier wills and contracts, information on the circle of heirs, and a calculation of the reserved portions. If there is a consideration, its amount, method of payment, due date, security and the consequences of non-performance must not be left unclear. Notary fees, translation and other costs are calculated according to the tariff valid on the date of the transaction and the scope of the transaction; a single fixed amount does not apply to all contracts.
How strong is the binding effect of the contract?
Later making of a will
A later will made by the decedent does not automatically annul the earlier inheritance contract. Mortis causa dispositions that are incompatible with the contractual obligation may be challenged. To assess this, it must be determined which provision is contractually binding, to what extent the later disposition conflicts with it, and what the right holder is entitled to demand. (1, Art. 527)
The same official document may also contain purely unilateral provisions. It is therefore not correct to say, without distinction, that the entire document "can never be changed". Which transfer was made with a view to mutual binding effect, which powers of amendment were reserved, and the parties' real intention all matter in interpreting the contract.
Sales and gifts during the decedent's lifetime
TMK Art. 527 protects the decedent's power to dispose of their property during their lifetime, but it also allows an objection to lifetime dispositions and gifts that are incompatible with the contract. This rule cannot be applied as though a general sales prohibition had been placed on the land registry. Genuine sales, gifts and transactions that conceal a gift are examined separately. [1]
In S. Derya Yakupoğlu's study of binding effect, the disagreement between freedom of disposition and protection of the beneficiary is discussed, particularly as regards the limits of interference with gifts. The author does not adopt an absolute binding approach. Because of this debate, it cannot be said that every later gift is cancelled without further examination. The purpose of the transaction, the scope of the contract and concrete evidence are important. (2, especially pp. 259–260)
In practice, the beneficiary should preserve the asset list as of the date of the contract, subsequent transfers and any payments of consideration. The decedent, for their part, should be able to document the dispositions made for their real needs, such as care, housing or subsistence. Bank records showing the actual consideration may be more informative than the name of the transaction on the title deed alone.
Can reserved portions be removed by contract?
Concluding an inheritance contract does not render the reserved-portion rules ineffective. If the contract makes very extensive gifts to a particular person and reserved portions are infringed at the date of death, an action for abatement may arise. Preparing an asset list in advance does not mean that the estate and the family situation at the date of death will remain unchanged. (1, Art. 505–509, 560)
For this reason, changes such as marriage, the birth of a child, significant gifts and a reduction in assets may require the legal effect of the contract to be reassessed. The beneficiary's reliance on the contract and another heir's reliance on a reserved portion are examined together. Abatement is not the same as invalidity of all the provisions of the contract.
How does an inheritance contract end?
Written agreement of the parties
The parties may end the contract at any time by written agreement. For this revocation, the law provides a different arrangement from the formal requirement for concluding the contract. However, revoking an existing contract and creating a new mortis causa benefit are different things; the new disposition requires its own form. Provisions on return, payment and security must be stated clearly. (1, Art. 546)
Later conduct amounting to grounds for disinheritance
If an heir appointed under the contract, or a person to whom property has been bequeathed under it, engages after the contract in conduct that constitutes grounds for disinheritance against the decedent, unilateral termination may be possible. The law requires that this be done by one of the types of will. An ordinary notice or informing the family should not be used on the assumption that it replaces this formal requirement. (1, Art. 546)
Rescission if an inter vivos performance is not rendered
A party who is entitled under the contract to demand a performance during the decedent's lifetime may rescind under the rules of the law of obligations if the performance is not rendered in accordance with the contract or is not secured. Maturity, notice, additional periods and their exceptions are assessed according to the nature of the specific obligation. Every minor delay does not automatically end the whole contract. (1, Art. 547; 3, Art. 117, 123–125)
If the beneficiary dies before the decedent
If the heir appointed or the person to whom specific property was bequeathed is not alive when the decedent dies, TMK Art. 548 provides that the contract ends by operation of law. Unless otherwise agreed, the heirs of the person who died first may reclaim the enrichment that the decedent still holds under the contract on the date of death. This does not mean that every payment made is returned in full and in the same amount. The terms of the contract and the calculation of enrichment are examined separately. [1]
How is the right action and evidence chosen in a dispute?
The invalidity of the contract, performance of the contract, an objection to a later disposition contrary to the contract, and abatement on account of reserved portions are different claims. The legal objective must be determined first: is it status as heir, delivery of a specific asset, annulment of the contract, or repayment of a payment made? As the claim changes, jurisdiction (subject-matter and territorial), time limits and the circle of defendants may also change. (1, Art. 557–571, 600; 4, Art. 2, 11–12)
In its decision of December 18, 2023 (E. 2022/4574, K. 2023/6313), the 7th Civil Chamber of the Court of Cassation (Yargıtay 7. Hukuk Dairesi) examined together an inheritance waiver connected with a care contract. The decision distinguished the parties to each contract and the contract to which the intention to annul was directed, and it attached importance to whether a properly brought action existed in respect of the care contract. It was not accepted that an action concerning one contract automatically ended the other. (5)
For annulment of a mortis causa disposition, the one-year learning period under TMK Art. 559 and the upper limits of ten or twenty years, depending on good faith, apply; for abatement, the one-year and ten-year periods in Art. 571 apply separately. The periods for performance and restitution claims are not identical to these. In particular, for an objection based on Art. 527, the legal nature of the claim and the time-limit question must be resolved separately; a single period for all contract disputes would be wrong.
The following should be submitted to the court: a certified copy of the contract, payment and security documents, later dispositions, a certificate of inheritance and records supporting the date of learning. Filing an action does not automatically stop transfers. Interim measures, security and expenses that depend on economic value are assessed separately. Mandatory mediation is checked against the specific scope of the claim asserted. (4, Art. 389–392; 6)
For contracts made abroad, it is not enough to check whether Turkish notarial form is present. The form of the disposition, the capacity to dispose, the law applicable to the estate and jurisdiction are determined separately under the Private International and Procedural Law No. 5718 (MÖHUK). The certification and translation of a foreign document do not replace its validity under substantive law. (7, Art. 7, 20, 43)
Conclusion
The value of an inheritance contract lies in the parties' ability to regulate their expectations in a binding and clear way. For this purpose, the appointment of an heir must be separated from the bequest of specific property, and the formal requirements and contractual binding effect must be separated from the freedom of disposition during lifetime. When performance, termination, reserved portions and possible disputes are clarified at the outset, the enforceability of the contract is strengthened.
For related aspects, see our article on appointing substitute heirs and accruing heirs and our page on inheritance law and estate proceedings.
Frequently Asked Questions
Can an inheritance contract be handwritten?
A handwritten text alone does not satisfy the formal requirement for an inheritance contract. A handwritten will is a different type of disposition.
Is it enough for the signatures of two persons to be certified by a notary?
No. The official will form and the joint declaration and witness procedure under TMK Art. 545 must be observed.
Does the title pass as soon as the contract is signed?
An inheritance contract alone does not mean a transfer of ownership from today. If a separate transfer during the decedent's lifetime has been agreed, its conditions apply separately.
Can the decedent later withdraw by will?
A later will that is incompatible with the contract does not automatically end it. The statutory ways of ending the contract and the nature of the contract are examined.
Can property be left to a third person who is not an heir?
Yes. TMK Art. 527 allows a benefit to the other party to the contract or to a third person. Reserved portions and the other validity requirements remain protected.
If the beneficiary dies first, does the right pass automatically to their children?
This result is not automatic. TMK Art. 548 and the terms of the contract are assessed; the return of the consideration provided is a separate matter.
Is every gift contrary to the contract?
No. The scope of the contract, the nature of the transaction and the relevant legal assessment are required. Freedom of disposition during lifetime is not entirely eliminated.
Is the consent of all heirs required to end the contract?
Termination by written agreement of the parties is assessed with regard to the parties to the contract. The mere possibility of becoming an heir in the future does not make a person a party to the contract.
Sources and legal bases
- Turkish Civil Code No. 4721 (4721 sayılı Türk Medeni Kanunu), in particular Art. 502–503, 516–517, 527–530, 532–548, 557–571, 599–600, 676–678. Current consolidated text.
- S. Derya Yakupoğlu, “Positive Inheritance Contract: Binding Effect” (“Olumlu Miras Sözleşmesinin Bağlayıcılığı”), Journal of the Union of Turkish Bar Associations (Türkiye Barolar Birliği Dergisi), 2018, issue 136, pp. 225–262. Full text.
- Turkish Code of Obligations No. 6098 (6098 sayılı Türk Borçlar Kanunu). Current consolidated text.
- Civil Procedure Code No. 6100 (6100 sayılı Hukuk Muhakemeleri Kanunu). Current consolidated text.
- Court of Cassation, 7th Civil Chamber (Yargıtay 7. Hukuk Dairesi), December 18, 2023, E. 2022/4574, K. 2023/6313, remand (bozma); evaluation section. Full text, Kanun Yolu publication.
- Law No. 6325 on Mediation in Civil Disputes (6325 sayılı Hukuk Uyuşmazlıklarında Arabuluculuk Kanunu). Official text.
- Law No. 5718 on Private International and Procedural Law (5718 sayılı Milletlerarası Özel Hukuk ve Usul Hukuku Hakkında Kanun). Official text.