Inheritance Rights of Children Born Out of Wedlock from Their Mother’s Side
Pursuant to Article 282 of the Turkish Civil Code No. 4721 currently in force, “The blood relationship between a child and its mother is established at birth.” In other words, regardless of whether the child was born within or outside of marriage, it becomes related to its mother and her relatives at birth and also becomes an heir.
Inheritance Rights of Children Born Out of Wedlock Through Their Father
According to the second paragraph of Article 282 of the Turkish Civil Code No. 4721 currently in force; “Children born within a marital union are connected to their fathers by blood ties at birth (just like their mothers).” Therefore, since children born within the marital union are connected to their fathers by blood ties at birth, they become heirs to their fathers at birth. However, if they are born outside the marital union, there is no blood tie between them and their fathers. Therefore, they can only become heirs to their fathers under certain circumstances. These circumstances are explained in detail below. However, before proceeding to these, it is useful to know what changes have been made to the law regarding this issue (the inheritance rights of children born out of wedlock from their fathers). For this purpose, we will compare the old law and the new law.
The first paragraph of Article 443 of the old Civil Code stipulated that a child born out of wedlock could only inherit from their father if a valid blood relationship had been established between them. In other words, the child could only inherit from their father if they had been recognized by their father or if a personal paternity ruling had been issued establishing their relationship with their father. Children who did not have a valid blood relationship with their father through either of these means, or who could not establish such a relationship, could not inherit from their father or his relatives, even if their father had been identified through a paternity suit with material consequences.
With the decision of the Constitutional Court dated September 11, 1987, No. E. 1987/1, K. 1987/18, the first paragraph of Article 443 of the old Civil Code was found to be contrary to the Constitution and was repealed. The Constitutional Court’s decision to annul the first paragraph of Article 443 of the old Civil Code is as follows: “… Despite the provision in Article 10 of the Constitution that everyone is equal before the law and that no person, family, group, or class may be granted privileges, the provisions of Article 443 of the Civil Code, whose repeal was sought, stipulate that children of illegitimate descent may inherit from their father only if their father has acknowledged them or if a court has ruled on paternity, which is contrary to Article 10 of the Constitution. This is because, while a child with a valid paternal lineage can fully exercise their inheritance rights, a child without a valid paternal lineage cannot inherit from their father if they have not been recognized by their father or if a paternity case has not been filed within the prescribed time limit, even though they are not at fault. Thus, the Constitutional Court found that the exclusion of children whose paternity has been established (through a paternity case with material consequences) but who are not legally recognized as the children of their fathers (because they have not been acknowledged or because the case filed did not have personal consequences) from inheriting is contrary to the Constitution and repealed the first paragraph of Article 443 of the old Civil Code in 1987.
Additionally, the second paragraph of Article 443 of the old Civil Code regulated that children with valid paternity and children with invalid paternity would inherit at different rates if they were heirs together through their father. In other words, even if an illegitimate parent-child relationship had been established, an illegitimate child would receive half the share of the inheritance compared to legitimate children when inheriting alongside the father’s legitimate children.
The Constitutional Court’s decision dated 11.9.1987 and numbered E. 1987/1, K. 1987/18, ruled that the second paragraph of Article 443 of the Civil Code, which regulates the different inheritance rates of legitimate and illegitimate children when they are co-heirs through their father, is unconstitutional and therefore invalid. The Constitutional Court’s decision to invalidate the second paragraph of Article 443 of the old Civil Code is as follows: “……According to the second paragraph of Article 443 of the Civil Code, which is the subject of the objection, if children of illegitimate descent or their descendants are present alongside their fathers’ children of legitimate descent, they shall receive half of the amount that would otherwise go to a child of legitimate descent or their descendants. Accordingly, it is evident that the rule of dual inheritance distribution is aimed more at granting priority to children born within marriage than at serving the public interest. While it could be argued that this stems from the principle of prioritizing the institution of marriage and the result of placing greater value on children born within marriage, these reasons cannot serve as a basis for creating such a distinction. Indeed, it is clear that this different application does not prevent extramarital unions, as evidenced by the amnesty laws enacted since the adoption of the Civil Code to administratively rectify lineage and the number of unions not based on marriage contracts. Thus, since the rule in question results in discrimination and restriction of the inheritance rights of children born outside of marriage, the aforementioned provision is contrary to Article 35 of the Constitution for the reasons explained above. The Constitutional Court has annulled the second paragraph of Article 443 of the Old Civil Code on the grounds that it is contrary to the principle of equality before the law and Article 35 of the Constitution, as it implies that a child born within marriage is superior to a child born outside of marriage in terms of inheritance. It concluded that children without legitimate lineage should receive an equal share with children with legitimate lineage.
Article 498 of the Turkish Civil Code No. 4721, which entered into force on January 1, 2002, and is still in force, seeks to protect the inheritance rights of children born outside of marriage. When compared to the old Turkish Civil Code, as explained above, the new Turkish Civil Code clearly provides better protection for the inheritance rights of children born out of wedlock.
According to Article 498 of the Turkish Civil Code, “Children born out of wedlock whose filiation has been established by acknowledgment or court order shall be heirs on the father’s side in the same manner as children born within wedlock.” As can be understood from the text of the article, the inheritance rights of children born out of wedlock on the father’s side are subject to the condition that filiation has been established. The establishment of a blood relationship between the father and the child is possible in three ways. These are listed in Articles 282 and 498 of the Turkish Civil Code. Accordingly, a blood relationship is established through:
The subsequent marriage of the mother and father,
A court ruling (paternity suit),
The recognition of the child by the father (acknowledgment suit).
However, the recognition of a child born out of wedlock is only possible if there is no other man with whom a legal relationship exists. If a blood relationship has been established between the child and another man (the mother marrying another man other than the child’s father), the biological father (the child’s real father) will need to have the existing blood relationship annulled in order to establish a blood relationship with the child, as there will be a legally valid blood relationship.
In short, if a blood relationship has been established between the child born outside of marriage and the father, the child becomes an heir on the father’s side, just like relatives within the marriage. In other words, children born outside of marriage inherit the same share (proportion) as children born within marriage.
CONCLUSION
Children born outside of marriage are directly heirs to their mother and her relatives at birth. However, the situation is slightly different on the father’s side. The law requires that a child born outside of marriage have a legal relationship with their father in order to be an heir to their father. If a legal relationship with the father is not established, the child will not be able to claim rights to their father’s inheritance, meaning they will not be an heir to their father. The blood relationship is established when one of the three conditions listed in Articles 282 and 498 of the Turkish Civil Code is met. These are: the mother and father marrying after the child’s birth, a paternity suit resulting in a decision of paternity, or the father acknowledging the child (acknowledgment suit).
