On a spouse’s death, it must first be determined which assets and debts belong to the estate. The liquidation of the matrimonial property regime and the division of the inheritance are separate legal calculations that affect each other. It is possible for the surviving spouse to be both a liquidation creditor and an heir.
Why does the order of liquidation matter?
Distributing the whole of every value that appears in the deceased spouse’s name directly to the heirs may overlook the surviving spouse’s claim. Conversely, if the deceased spouse has a liquidation claim against the surviving spouse, that claim may be an asset of the estate. First, the reciprocal groups of property and the debts are determined; the net estate is then divided later under the rules of inheritance. [1]
A simplified example
Let us assume that the entire acquired value of the deceased spouse is 4,000,000 Turkish lira (TL), that there is no other property or debt, and that the reciprocal account of the surviving spouse is zero. At the statutory ratio, setting aside a participation claim of 2,000,000 TL comes into question. If the surviving spouse is an heir together with descendants, a one-quarter inheritance share is additionally calculated on the remaining 2,000,000 TL. This example does not show that there is a fixed ratio for all assets; the contract, debts and other property change the result.
Who takes part in the lawsuit?
The certificate of inheritance is the starting data. A disclaimer of inheritance, representation, a joint ownership relationship and the surviving spouse also being an heir may affect the structure of the parties. If representation of the estate is needed, this issue must be resolved. An action brought against an incomplete or wrong party may create a procedural problem even if the substantive calculation is correct.
Do inheritance contracts end the right to liquidation?
It is examined whether a renunciation of inheritance or an estate partition agreement covers only the right of inheritance or also the matrimonial property regime claim. Just as not every general partition document is regarded as an automatic release, an explicit liquidation arrangement cannot be disregarded either. Payment and offsetting (mahsup) records are important to prevent double collection.
Death while a divorce is pending
The heirs’ continuing the determination of fault may have consequences for the surviving spouse’s status as an heir. This consequence does not mean that the matrimonial property regime claim is erased in the same way. Termination by death, fault and the provisions on inheritance should be dealt with under separate headings in the file.
How are the matrimonial property regime and the inheritance liquidated together in the case of death?
Are an unresolved inheritance, an action for abatement or a reserved portion action included in the liquidation?
Property acquired by inheritance and the value that takes its place are, as a rule, personal property. In an inheritance, abatement, annulment of a will or inheritance-based recovery action that is pending on the date the matrimonial property regime ended, it is first determined whether the right had arisen and the date on which the inheritance was opened. If the outcome affects the existence or the amount of the personal property, the inheritance action may be treated as a preliminary question.
An “expected inheritance” is not a liquidation asset that exists and is transferable while the decedent is alive. As a result of disinheritance (Article 510 et seq. of the Turkish Civil Code), abatement and a reserved portion dispute, the cause of arising of the value acquired later is separated from the income, if any, obtained from this personal property during the regime.
Does disclaiming an inheritance count as diverting assets from the participation claim?
Because the inheritance itself is, as a rule, personal property, the generalization that a spouse’s disclaiming an inheritance reduces acquired property and that the disclaimed inheritance is to be treated as a value to be added directly under Article 229 of the Turkish Civil Code is not correct. Moreover, Article 578 of the Turkish Civil Code regulates not the annulment of a disclaimer of inheritance but the grounds for loss of inheritance rights (mirastan yoksunluk).
The correct provision is Article 617 of the Turkish Civil Code: If an heir whose assets are insufficient for his or her debts disclaims the inheritance in order to harm the creditors, the creditors or the bankruptcy administration may request annulment of the disclaimer within six months from the date of the disclaimer, unless sufficient security is provided. Whether the spouse who is a liquidation creditor is a creditor within the meaning of Article 617, the arising of the claim, over-indebtedness, the intent to cause harm and the time limit must be proven in the specific file. If annulled, the inheritance is not given in kind to the creditor spouse; the inheritance is officially liquidated and the order of payment in the law is applied.
How are the matrimonial property regime and the inheritance liquidated together in the case of death?
Is the matrimonial property regime or the inheritance calculated first?
When one of the spouses dies, the matrimonial property regime between the spouses is liquidated first; the surviving spouse’s or the estate’s participation claim and share in increased value are determined. After this claim or debt is recorded in the estate, the inheritance shares are calculated. It is possible for the surviving spouse to be both a creditor under the matrimonial property regime and an heir; the two capacities are not confused.
Can the surviving spouse request ownership of the family residence?
Article 240 of the Turkish Civil Code gives the surviving spouse, so that he or she can continue the former way of life, the possibility of requesting usufruct, a right of habitation or, if there are justified reasons, ownership of the family residence, by offsetting it against the participation claim and, if that is insufficient, by adding a payment; and ownership of the household goods. This right is not the same as the inheritance law provision in Article 652 of the Turkish Civil Code; it must be determined which right will be exercised at which stage of the liquidation.
What happens if a spouse dies while the divorce is pending?
A marriage ends, as a rule, by death; the exceptional provisions on the heirs’ continuing the divorce action, fault and the consequence for inheritance status are examined separately. The date and reason for which the matrimonial property regime ended, standing to be a party and the type of claim may change. The calculation “as of the date of the divorce” should not be applied to the file automatically.
Does a person who kills his or her spouse acquire a right under the matrimonial property regime?
Loss of inheritance rights, the ground for divorce, the attempt on life in Article 236/2 of the Turkish Civil Code and abuse of rights are separate legal institutions. The material facts in the criminal file, finality and the consequences in family and inheritance law must be examined together.
Related articles: How Is Property Divided in a Divorce? A Guide to Matrimonial Property Regime Actions; How Is the Participation Claim Calculated? Debts, Equalization and Residual Value; Who Gets the Family Residence After a Spouse’s Death? Allocation (Özgüleme) and Disputes with Heirs; How Is a Property Division Claim Collected? Interest, Finality, Enforcement and Attachment.
Frequently asked questions
If one of the spouses dies, how is the matrimonial property regime calculation started?
The matrimonial property regime applicable on the date of death and each spouse’s groups of property are determined. The surviving spouse’s claim may be a debt of the estate; the deceased spouse’s claim against the survivor may be an asset of the estate. After this calculation is clarified, the division of the inheritance is assessed. The death certificate, the certificate of inheritance, contracts, debts and asset records should be prepared together.
Are the matrimonial property regime claim and the inheritance share determined within the same calculation?
Although they relate to the same economic whole, they are separate legal calculations. The liquidation of the matrimonial property regime affects the determination of the deceased spouse’s net estate; the surviving spouse may then also receive his or her own share as an heir. The participation claim is not a right that takes the place of the inheritance share. Without knowing the debts, the other spouse’s property and the shares of the heirs, it cannot be said that “the spouse takes this much of the total.”
Should the division of the inheritance wait for the outcome of the matrimonial property regime action?
If the matrimonial property regime claim changes the amount of the estate, it may constitute a preliminary question for the division of the inheritance. The relationship between the files and the need for a preliminary issue must be explained to the court. However, it cannot be said that all inheritance procedures will stop in every case. Protective measures, determination and estate management procedures serve different purposes; which procedure depends on which calculation result must be distinguished.
Between whom is the matrimonial property regime action heard after a spouse’s death?
The surviving spouse’s liquidation request may be directed at the deceased spouse’s heirs; if the deceased spouse has a claim, the heirs may make a demand against the surviving spouse. A disclaimer of inheritance, the estate representative, joint ownership and the surviving spouse’s also being an heir affect the structure of the parties. It may not be sufficient to determine all the parties merely by listing the names in the certificate of inheritance.
Is the claim of a spouse who renounced the inheritance arising from the matrimonial property regime examined separately?
A renunciation of inheritance concerns the right of inheritance; the matrimonial property regime claim is a different legal right. For this reason, the participation claim is not accepted as also having fallen away without reading the scope of the renunciation contract. If the same document also contains a separate liquidation, release or other arrangement, its form, timing and validity are examined. It must be clarified which right the consideration for the renunciation corresponds to.
Can the matrimonial property regime claim be requested after an estate partition agreement has been made?
It is determined whether the partition agreement liquidated only the inherited assets or also the matrimonial property regime claim. A release of the participation claim cannot be inferred in every case from a general division of the inheritance; an explicit liquidation agreement cannot be disregarded either. The contract, payment records and the parties’ statements are assessed together. Receiving the same amount twice, first as a partition payment and then as a claim, should be prevented.
If death occurs while a divorce is pending, how does the heirs’ fault action affect the matrimonial property regime?
Death ends the marriage and the matrimonial property regime. In a pending divorce file, the heirs’ continuing the determination of fault may have consequences for the surviving spouse’s inheritance rights. However, this does not mean that the consequence of loss of inheritance rights automatically eliminates all matrimonial property regime claims. The provisions on death, fault, liquidation and inheritance must be applied separately, each with its own conditions.
Are the inheritance and matrimonial property regime claims of a person who kills his or her spouse subject to the same rules?
Intentionally and unlawfully killing one’s spouse brings the provisions on loss of inheritance rights into play. The matrimonial property regime claim, on the other hand, rests on a separate legal basis; the special reduction provision in Article 236 is also tied to a particular divorce outcome. The principle of good faith and the other consequences of the specific case may be discussed separately. An automatic conclusion such as “he or she cannot inherit, therefore all of his or her claims are erased as well” cannot be drawn.
If the spouses die together, how are the heirs’ reciprocal matrimonial property regime claims dealt with?
If it cannot be proven who died first, the spouses do not become heirs of each other because of the presumption of simultaneous death. Even so, the need for liquidation of the matrimonial property regime for the period of the marriage does not disappear. Each spouse’s assets and reciprocal claims are determined and reflected in the relevant estates. The identity of the heirs, the order of death and the debts are investigated separately; the inheritance share and the liquidation claim are not confused.
This article is for general legal information. In a specific dispute, the dates of events, the documents, the type of claim and the time limits are assessed together.