What is the effect of property regimes on inheritance?

As a rule, the surviving spouse receives a share of the inheritance according to the persons in the group he or she together inherits the property with.

As a rule, the surviving spouse receives a share of the inheritance according to the persons in the group he or she together inherits the property with.

  • If the spouse of the deceased is included with children in the sharing of the inheritance, then he/she has a statutory share of one-fourth.
  • If the spouse of the deceased is included with the parents or siblings in the share of the inheritance, then he/she has a statutory share of one-half.
  • If the spouse of the deceased is included with the grandparents or there children in the share of the inheritance, then he/she has a statutory share of three-forth.
  • In all the other cases the spouse of the decease acquires the whole property. ​(art. 499)

If the 'Participation Regime in Acquired Goods, which is the legal regime between the parties, is applied, then the following shall apply:

- the surviving spouse or his or her heirs are entitled to half of the residual value of the other spouse. Receivables are exchanged. (md.236) In other words, the surviving spouse receives half of the residual value, then receives ¼ of the remaining half (if heirs with the children), thus receiving ¾.

- In addition, the surviving spouse may request the allocation of the house and belongings of the common house. However, for this, he or she must pay share of other heirs. This payment can be made by either leaving own participation share to other heirs and, if it is not enough, by adding a price to be paid. (art.240)

In the division of shared property regime the spouse of the deceased may request the right of ownership of the household goods or the residence where the spouses had lived together. He or she may request the right of property by deducting the right arising from inheritance and sharing and, if not sufficient, by adding a price to be paid. (art.255)

In the property separation regime, personal and partnership properties are not differentiated, and if the surviving spouse is the heir with the children, he or she receives ¼ of the inheritance. Other inheritance shares are applied here in the same way.

In a property partnership, one of the spouses cannot refuse an inheritance that will enter the partnership property without the consent of the other, nor can he or she accept it in case of debt.

In the event of the death of one of the spouses or the termination of the property partnership regime with the acceptance of another property regime, half of the partnership property is given to each spouse or his or her heirs.

Should the liquidation of the property regime be requested in a divorce case or should a separate lawsuit be filed?

The lawsuits and demands arising from the liquidation of the property if requested in the divorce case are separated and is considered as a pending matter to the divorce.( see 2nd Civil Chamber of the Supreme Court of Appeals, dated 2005/1208 E., 2005/4267 K. and 17.03.2005)

What should be requested in the Conclusion and Claim Section of the Petition regarding the Liquidation of the Property Regime?

These cases are debt claims and as a rule, no claim in kind can be made in such cases. The receivable arising as a result of the liquidation of the property regime is a “participation receivable”, and the participation receivable is a right of receivable arising from the law.

Since, as a rule, such claims cannot be made, requests such as "cancellation and registration of 1/2 share of the immovable, conversion of the immovable into joint ownership" will not be taken into consideration. ​It is the liquidation of the property regime to be requested and the collection of the participation receivable of …….. TL that will arise in favor of the client.

Is there a need to file a counterclaim as a defendant?

Theoretically, the liquidation is two-sided. However, in terms of procedural law, no residual value and participation receivables are calculated for the spouse who does not file a legal action or counterclaim. Likewise, if the defendant as a request for an increase in value is he or she must file a counterclaim.

How Should the Liquidation of Property Regime be Arranged in Uncontested Divorces?

In uncontested divorces, the rules regarding the liquidation of the property regime are stated in the protocol.

Under the regime of participation in acquired goods, both parties agree and undertake that they will not demand participation receivables, value increase receivables or contribution receivables or any other receivables within the scope of this regime.

When does the Property Regime end in case the Recognition or Enforcement Decision is Made?

Law No. 5718 on International Private and Procedural Law art. 59 states that “The decision

or the final evidence effect of the foreign judgment becomes effective from the moment the foreign court decision becomes final”. However, the Supreme Court 8th H.D. is of the opinion that the property regime ends on the date the foreign divorce case was filed. (Y. 8. H.D. 19.10.2009, 2342-4941 and Y.8 H.D. 20.10.2009, 3620-5010)

Which Evidence is needed for the Participation Receivable?

In the case of liquidation of the property regime, all kinds of evidence including witness declarations can be used.