Can an Abatement Lawsuit Be Filed if the Deceased Sold Property Before Death? The Nuances of the Hypothetical Estate Calculation

One of the most common disputes in inheritance law is whether a sale of real property that the deceased made to one of the heirs before death infringes the reserved-share rights of the other heirs. Many heirs think, "I didn't file a separate lawsuit to cancel the title for that sale, so don't I also lose my right to file an abatement lawsuit?" In fact, however, Court of Cassation case law grants heirs significant flexibility on this point. In this article, we examine how pre-death sales can be included in the "hypothetical estate" (farazi tereke) calculation in an abatement lawsuit.

Summary of the Situation

Before death, the deceased transferred one or more pieces of real property they owned to one of the heirs (for example, a son) by way of a sale agreement. The other heirs did not file a lawsuit for cancellation and registration of title against this sale transaction; however, following the deceased's death, they wish to file an abatement lawsuit (tenkis davası), arguing that their reserved shares were infringed by these sales. The question that must be answered is this: does the absence of a title-cancellation lawsuit prevent these properties from being included in the "hypothetical estate" calculation in the abatement lawsuit?

The Legal Issue

Under Article 507 of the Turkish Civil Code, the disposable portion is calculated based on the state of the estate on the day of the deceased's death. Article 565 of the Civil Code, in turn, provides that gratuitous dispositions made by the deceased with the intent of circumventing the reserved-share rules are subject to abatement. As a rule, genuine transfers made by way of sale are not subject to an abatement lawsuit, because the sold property has already left the estate as of the date of death. However, there is a critical exception to this rule: if it can be proven that the transaction was in fact a gift and was made with intent to infringe the deceased's reserved share, these properties (or the price paid in exchange for them) may be included in the abatement calculation even if no title-cancellation lawsuit was filed.

What Does the Court of Cassation Say?

The Rule: Genuine Sales Are Not Subject to Abatement

According to the settled case law of the Court of Cassation 1st Civil Chamber, real property transferred by the deceased during their lifetime by way of sale, where no title-cancellation lawsuit was filed against that sale, is treated as a genuine sale and, having left the estate as of the date of death, cannot be included in the abatement calculation (Court of Cassation, 1st Civil Chamber, 2009; Court of Cassation, 1st Civil Chamber, 2018; Court of Cassation, 1st Civil Chamber, 2020). Along the same lines, it has been emphasized that real property for which no title-cancellation lawsuit was filed on the ground of a sham transaction by the deceased (muris muvazaası) should not be included in the active estate, since it was not registered in the deceased's name as of the date of death (Court of Cassation, 1st Civil Chamber, 2009; Court of Cassation, 1st Civil Chamber, 2012; Court of Cassation, 7th Civil Chamber, 2023).

The Exception: Proof of Intent to Infringe the Reserved Share

However, the absence of a title-cancellation lawsuit does not absolutely bar an abatement claim. If the plaintiff heir can prove that the transaction was in fact a gift in nature, or that the deceased acted with the intent to infringe the reserved share, the court may include these properties in the hypothetical estate calculation:

• In a case where the plaintiff withdrew the claim for cancellation and registration of title and sought only abatement, it was held proper to treat the shares transferred by way of sale as inter vivos gratuitous dispositions made with intent to infringe the reserved share, and to include them in the hypothetical estate (Court of Cassation, 1st Civil Chamber, 2021).
• Even where the claim for cancellation and registration of title was dismissed, it was held that the disposition at issue was subject to abatement, that the deceased had acted with intent to infringe the reserved share, and that this had to be taken into account in the hypothetical estate calculation (Court of Cassation, 1st Civil Chamber, 2016; Court of Cassation, 7th Civil Chamber, 2023).

The conclusion drawn from these decisions is clear: the fact that a title-cancellation lawsuit was not filed, or was dismissed, does not automatically determine the fate of the abatement lawsuit. What is decisive is whether the sale was genuine or was, in substance, a disposition intended to circumvent the reserved share.

Abatement of the Price Paid, Rather Than the Property Itself

Another situation frequently encountered in practice is one in which the deceased, instead of directly transferring the property, gave the heir the purchase price of a property (for example, where property was purchased from a third party and registered directly in the heir's name, or where property was sold to a third party and the proceeds were given to the heir). In such cases, the Court of Cassation has stated that what is subject to abatement is not the property itself, but the updated value, as of the date the inheritance opened (death), of the money paid (Court of Cassation, 2nd Civil Chamber, 2008; Court of Cassation, 2nd Civil Chamber, 2007; Court of Cassation, 7th Civil Chamber, 2022). As the valuation criterion, it is not the property's current value as determined by an on-site expert inspection that is applied, but rather the value that the sale price stated in the contract had reached as of the date of death (Court of Cassation, 1st Civil Chamber, 2017).

Points to Watch

• The burden of proof lies with the plaintiff heir. It falls to the plaintiff to show that the sale was in fact a gift or was carried out with intent to infringe the reserved share; this is generally established through evidence such as the disproportion between the sale price and the true value of the property, the deceased's financial circumstances, and who actually retained possession of the property after the sale.
• A mere price discrepancy alone may not be sufficient. Although the gap between the contract price and the market value is an important indicator in establishing sham transactions, it may not be considered sufficient on its own; the court evaluates the entire chain of events.
• Not filing a title-cancellation lawsuit can be a strategic choice. Some plaintiffs may prefer to pursue a faster and less risky path by seeking abatement directly, instead of a title cancellation; however, this choice requires the legal basis of the case to be constructed correctly.
• Where a monetary transfer is at issue, calculating the current value is critical. In such lawsuits, the expert examination must accurately reflect the purchasing power of the amount paid as of the date of death.

Conclusion: What Should You Do?

If sales made by the deceased before death were structured in a way that infringes the rights of reserved-share heirs, this may be raised in an abatement lawsuit even if no title-cancellation lawsuit was filed. If you find yourself in such a situation:

1. Gather the evidence (sale price, payment records, witness statements, the deceased's financial situation) that will show whether the sale transaction was genuine or a disguised gift.
2. Evaluate, together with a legal advisor and based on the specifics of your case, the decision of whether or not to file a title-cancellation lawsuit; both paths carry different advantages and risks.
3. If what is at issue is a sum of money rather than a transferred property, take care to ensure the correct calculation of that sum's updated value as of the date of death.
4. In the abatement lawsuit, request the preparation of a comprehensive estate schedule (active estate plus dispositions subject to abatement) that will demonstrate the extent to which your reserved share was infringed.

Because abatement lawsuits involve complex technical elements in both substantive law and the law of evidence, obtaining support from an inheritance law specialist at the outset of the process will help prevent the loss of rights.