Renunciation of the inheritance, according to Article 528 of the Civil Code, is the renunciation of an inheritor’s legal inheritance voluntarily and intentionaly, with a contract with the legator (testator). The heir who renunciate now loses his title of heir! The contract of waiver of inheritance (Renunciation of the inheritance) is not a death-related disposition for the heir with a reserved share who renounces his right to inheritance, it is a transaction between the two. On the other hand, it is considered a testamentary disposition for the legator.
Since the waiver of inheritance is an inheritance contract, the parties to the contract must have the power to distinguish, be mature and not be restricted. It must be drawn up in the form of an official testament at the notary.Renunciation of the inheritance agreements made without complying with this form requirement will be invalid!
Although the institutions of renunciation of the inheritance and refusal of inheritance look similar, they are actually completely different. To touch on the difference, first of all, refusal of inheritance is done within a certain period of time after the death of the testator, while renunciation is made while the testator is still alive. While the refusal of the inheritance is with the unilateral declaration of will by the heir, the renunciation of the inheritance takes place in the form of a contract. Rejection of the inheritance does not affect the descendant and the inheritance passes to the descendant as if the heir dies. In the case of renunciation of the onerous inheritance, which we will talk about shortly, the descendant is affected by the renunciation.
We can divide the renunciation into onerous and gratuitous (Voluntary);
- Onerous Renunciation; The heir’s descendants are also affected, unless there is a contrary provision in the contract of renunciation of the inheritance, which is concluded in a way that provides a reward for the heir. In the case of a onerous renunciation, if the inheritance does not meet the debts when the inheritance is opened and the heirs do not pay the debts, he/she will be responsible for the compensation they received from the inheritor in the 5 years before the death of the inheritance, at the rate of enrichment at the time of opening the inheritance. This liability is a secondary limited liability.
- Gratuitous Renunciation; If the heir has not received any compensation as a result of the Renunciation agreement made between the parties, then there will be a gratuitous renunciation. The gratuitous waiver has no liability to the creditors of the estate.
One of the most important distinctions between gratuitous and onerous renunciation is in terms of its outcome. Unless otherwise agreed in the contract; In the onerous waiver, the descendant is not inherited like the one who renounces, and in the gratuitous waiver, the descendant of the waiver is not affected by this. In other words, the descandant of the gratuitous waiver has a right to inherit the estate.
An inheritance waiver agreement can be made “in favor of a particular person”. If there is a reason that prevents this person from being an heir (such as expulsion, deprivation, refusal or death before the testator), the renunciation will be void. If the renunciation agreement does not clearly state in whose favor it is made, the provision in question will be void.
In the renunciation agreements, if the reserved shares of the legal heirs are violated by the consideration received by the person who made onerous renunciation, hidden share holders have the right to demand action for reduction. In this case, only the amount exceeding the reserved share of the person waiving the inheritance is subject to action for reduction. Heirs with hidden shares can only demand the return of the amount exceeding their reserved share from the waiver. Against these demands of the heirs with reserved shares, the waiver may give the value subject to action for reduction, or return all of what they have received by rescission the renunciation agreement, and may request to participate in the sharing as if they have not renunciate the inheritance.
Except for the action for reduction request of the heirs with reserved shares who waived, in the event that the debt that must be fulfilled in accordance with the contract is not fulfilled by the testator and is not secured, waiver can terminate the contract in accordance with the provisions of the Code of Obligations.
On the other hand, In terms of the testator, if the waiver acts as a reason for expulsion from the inheritance after the conclusion of the contract, he/she may terminate the contract or the contract may explicitly have the right to return to the testator.
An action for annulment can be filed by the heirs or testament creditors who have a legal interest in the cancellation of the waiver contract in cases of the incapacity of the testator, failure to comply with the form requirements, invalidity of will and violation of law and morality. After the death of the deceased, an action for annulment must be filed within 1 year from the learning of the reason for annulment. However, if the savings are not canceled after 1 year from the date when the testator learned that he was wrong and deceived, and the effect of the intimidation has passed, the contract will now become valid.
As in every contract to be made, it is beneficial to get help from a lawyer who is an expert in his field, in the stages of establishing the inheritance waiver(Renunciation of the inheritance) contracts, fulfilling the provisions, and obtaining the rights arising from the contract. You can contact us for all your help and information requests.
