Inheritance Reduction Case And Reserved Share 2
What Are Reserved Shares in Inheritance Law?
In inheritance law, a reserved share is a specific percentage of the legal inheritance share that is protected against certain dispositions by the testator that infringe upon the inheritance rights. The testator cannot dispose of these percentages. The inheritance rights of the heir who is the owner of the reserved share cannot be eliminated in any way.
In inheritance law, the reserved share is calculated based on the Legal Inheritance Share.
Accordingly, reserved shares are as follows:
Descendants and the Right to a Reserved Share in Inheritance: Half (1/2) of the legal inheritance share is considered the reserved share for the descendants of the testator. For example, if the testator (deceased) leaves behind three children and a spouse as heirs after his death and bequeaths all his assets to his spouse through a will, the distribution will be made taking into account the reserved share of the heirs. In this case, each child’s legal inheritance share is 1/4, and each child’s reserved share ratio is also 1/2. Therefore, even if the testator leaves all their assets to their spouse, each child has the right to inherit 1/8 of the estate, and the testator cannot touch this reserved share. In our concrete example, if the testator had not left all of his/her estate to his/her spouse, the children, who would each have been entitled to 1/4 of the legal inheritance, would be entitled to 1/8 of the inheritance if the testator left all of his/her estate to his/her spouse.
Parents and Reserved Share Rights in Inheritance: One-fourth (1/4) of the legal inheritance share is considered the reserved share for each parent.
Reserved Share for the Surviving Spouse: If the surviving spouse is an heir together with descendants (1st Class) or parents (2nd Class), the entire legal inheritance share is reserved; in other cases, i.e., if the surviving spouse is the sole heir or an heir together with the 3rd Class, three-quarters (3/4) of the legal inheritance share is considered a reserved share.
However, for deaths occurring before January 1, 2002, inheritance shares and reserved shares are calculated according to the old system. The ratios under the system prior to this date are different. Furthermore, for siblings who were considered reserved share heirs until May 10, 2007, their reserved shares will be taken into account in lawsuits filed for deaths occurring before this date. If the death occurred after May 10, 2007, the reserved shares of the siblings will not be calculated.
It should be noted that if the disposition subject to reduction was made before January 1, 2002, it is not subject to the Old Civil Code. What matters is the date of death of the testator.
The Testator’s Disposition Ratio in the Inheritance
The disposition ratio can be expressed as the ratio that the testator can freely dispose of, which is found by subtracting the total of all the reserved shares mentioned above from the estate. The determination of the disposal ratio and reserved shares actually arises automatically with the calculation of the estate. Therefore, the main issue here is the determination of the estate (net estate). In practice, this is mostly done through an expert. For example, if we consider the estate to be 1 whole number, subtracting the number represented by the total reserved shares (which is a fractional number) from this 1 will give us the fractional number representing the disposal ratio. For example, in a concrete calculation, if the total reserved shares are 5/8, the disposal ratio is the remaining 3/8.
How is the Estate Calculated?
Since calculating the estate is a technical matter, in practice, the net estate calculation is performed by an expert. When determining the net estate, the assets (property, money, receivables, etc.) and liabilities (debts) of the estate are identified, and the net estate is found by subtracting the liabilities from the assets.
The assets of the estate are the property values left by the deceased at the time of death, as well as any gains subject to repayment and reduction. The liabilities of the estate consist of the debts of the deceased, the three-month living expenses of persons living with the deceased, the costs of sealing the estate and keeping records, funeral expenses, and other such expenses.
