This is the English version of a Turkish article. The original, with further detail and linked petition templates, is at Gaiplik Kararı: Kayıp Kişinin Hukuki Durumu.
A declaration of presumed death is given in two situations: disappearance in circumstances of mortal danger, and a long absence of news (Article 32 of the Civil Code). In the first, one year must have passed since the danger; in the second, five years since the last news. The court gives the decision after a public notice procedure, and its effects are the same as those attaching to death.
There has been no news of a relative for years. The estate cannot be divided, the spouse cannot remarry, the property cannot be managed.
The institution that brings that uncertainty to a legal end is the declaration of presumed death. This article sets out the conditions, the periods and the consequences.
In What Situations Is It Sought?
The Civil Code governs two distinct situations.
The presumption of death (Article 31). Where a person disappears in circumstances that make their death certain, they are treated as actually dead even though no body has been found — someone known to have been on a ship that sank, for example. Here no declaration of presumed death is needed; the death is registered on application to the population directorate.
Declaration of presumed death (Article 32). Where there is a strong probability that a person who disappeared in mortal danger, or of whom there has been no news for a long time, has died, the court may declare them presumed dead on the application of those whose rights depend on that death.
How Long Must One Wait?
The periods the law requires are:
- where the person disappeared in mortal danger — at least one year from the date of the danger
- where there has been no news for a long time — at least five years from the date of the last news
The venue is the court of the person's last domicile; if they never settled in Turkey, the place where they are entered in the population register; and failing that, the place where their mother or father is registered.
The court with subject-matter jurisdiction is the civil court of peace.
| Situation | Period to wait | Basis |
|---|---|---|
| Disappearance in mortal danger | 1 year from the danger | Civil Code Art. 32 |
| No news for a long time | 5 years from the last news | Civil Code Art. 32 |
| The court's public notice period | At least 6 months | Civil Code Art. 33 |
| Decision after the notice | At the end of the notice period | Civil Code Art. 35 |
Where death is certain, no declaration is needed; the death is registered directly by the population directorate (Article 31).
How Is the Public Notice Made?
The decision is not given at once. The court calls upon anyone with information about the person, by public notice made in the proper form, to provide it within a defined period.
That period is at least six months from the day of the first notice.
No decision may be given before the notice period expires. When it has expired and the application is found to be well founded, the court declares the person presumed dead.
If the person reappears before the notice period expires, or the date of death is established, the application lapses.
What Are the Consequences?
Retrospective effect. The consequences run from the date of the disappearance. The person is treated as having died not on the date of the decision but on the date of the mortal danger or of the last news.
The estate. The heirs may take delivery of the estate, but only against security. The security is given for five years where the person disappeared in mortal danger, for fifteen years where there was a long absence of news, and in every case for the period until they would have reached the age of one hundred.
If the person reappears, or persons with a better right emerge, the estate is returned.
Marriage. A declaration of presumed death does not by itself end a marriage. Under Article 131, where a spouse is declared presumed dead, the other spouse may not remarry unless the court has dissolved the marriage. Dissolution may be sought together with the declaration or separately.
A spouse who has obtained a declaration of presumed death must also obtain a decision dissolving the marriage before remarrying. The two may be sought in the same proceedings, which saves considerable time.