This is the English version of a Turkish article. The original, with further detail and linked petition templates, is at Tenkis Davası: Saklı Payın Korunması ve Mirastan Yararlanma.
An abatement action is brought to restore the share of an heir whose reserved portion has been encroached by dispositions made by the deceased. Only heirs holding a reserved portion — descendants, parents and the surviving spouse — may bring it. The period is one year from learning that the reserved portion was encroached, and in any event ten years from the opening of a will or from the succession opening for other dispositions (TMK art. 571).
Turkish law does not give the deceased unlimited freedom of disposition. Certain relatives are guaranteed a minimum share, and the abatement action is the tool that protects it.
The Reserved Portions
- Descendants: half of the legal share. With two children each takes 1/2 as legal share, so each reserved portion is 1/4.
- Parents: a quarter of the legal share each.
- The spouse: varies with the tier they inherit alongside. Where they inherit with descendants or with the parents' tier, the whole of the legal share is reserved; in other cases, three quarters of it.
Siblings, uncles and more distant relatives have no reserved portion, and therefore no right to bring an abatement action.
| Heir | Reserved portion |
|---|---|
| Descendants (children, grandchildren) | Half of the legal share |
| Each parent | A quarter of the legal share |
| Surviving spouse, inheriting with descendants or the parents' tier | The whole legal share |
| Surviving spouse, in other cases | Three quarters of the legal share |
The reserved portion of siblings was abolished in 2007; siblings cannot bring an abatement action.
Which Dispositions Can Be Abated
- Testamentary gifts. A gift or special right conferred by will, to the extent it exceeds the disposable portion.
- Lifetime gifts. Gifts and transfers made by the deceased during life are brought into the reserved portion calculation. This overlaps with the concept of a simulated disposition but is legally distinct.
- Insurance and payments for the benefit of third parties. Life policies naming particular beneficiaries can be included in the calculation.
- Establishing a foundation. Transferring a substantial part of the estate to a foundation can be abated where it encroaches on reserved portions.
The abatement action must be brought within one year of learning that the reserved portion was encroached, and in any event within ten years. Taking advice as soon as the succession opens is what preserves the right.
Bringing the Action
- Competent court: the civil court of first instance. The civil court of peace does not hear it.
- Parties: the heirs whose reserved portions were encroached sue; the defendants are the persons or institutions in whose favour the deceased disposed.
- Time limits: one year from learning of the death and of the disposition, and ten years in any event.
- Burden of proof: the heir must prove the encroachment. The value of the estate and the size of the reserved portion are usually established by expert assessment.
Abatement and Simulation
Abatement: the deceased genuinely made a gift; the gift is real and valid. Because it exceeds the reserved portion, it is reduced to that level. What is in issue is the amount, not the validity.
Simulation: the deceased made a gift but recorded it as a sale. The transaction is deceptive at its core, so the transaction itself is void — not merely the part encroaching on the reserved portion, but the whole of it.
The two are not mutually exclusive; both can be pleaded in the same case. Which to bring, and in what order, is a matter of strategy.
"Dispositions on death and inter vivos dispositions are subject to abatement to the extent that they encroach on the reserved portion."
TMK art. 560
Frequently Asked Questions
What is a reserved portion?
The minimum share the law guarantees to certain heirs, which the deceased cannot defeat by will or gift.
Who can bring an abatement action?
Only heirs holding a reserved portion: descendants, parents and the surviving spouse. Siblings cannot.
How long do I have?
One year from learning of the encroachment, and ten years in any event. Both are forfeiture periods.
Does abatement cancel the gift?
No. The gift remains valid; only the part exceeding the reserved portion is reduced.
Can I plead abatement and simulation together?
Yes, and it is usual to plead them in the alternative.