Can inheritance be divided while parents are alive? According to Supreme Court rulings, the division of inheritance while parents (the testator) are alive is possible under certain legal conditions. Judicial precedents have established two main methods for this: a formal division agreement made by the heirs with the participation of the testator and the actual division (allocation) of assets by the testator during their lifetime.

1. Division Agreement Made with the Participation of the Testator (TCC Art. 678)

Article 678 of the Turkish Civil Code makes the validity of division agreements to be made among heirs before the opening of the inheritance conditional on the testator’s participation in or permission for the agreement. The Supreme Court, based on this provision, “considers written division agreements made during the testator’s lifetime and with their participation to be legally valid.”

The 8th Civil Chamber of the Supreme Court (2013/705 E., 2013/3498 K.), ruling that the division agreement dated 15.12.1973, made during the testator’s lifetime with the participation of all heirs and the testator, was legally valid under TCC Articles 676 and 678, overturned the local court’s decision.

The 8th Civil Chamber of the Supreme Court (2010/3254 E., 2010/6326 K.)K, emphasized that for an external division made among heirs during the testator’s lifetime to be valid, the testator’s participation in the agreement is necessary (TCC Art. 678), and stated that the case should be dismissed on the grounds that “the plaintiffs could not claim or prove the existence of such a written agreement made with the participation of the testator.”

2. Actual Distribution (Allocation) by the Deceased During Their Lifetime

Another situation frequently encountered in Supreme Court decisions is when the deceased actually distributes their assets among their heirs during their lifetime and transfers their possession. Such distributions are generally characterized as “donations” or “allocations” and are considered valid under certain conditions.

Actual Distributions Considered Valid:

The deceased allocating and delivering their immovable properties to their male children by showing the location and drawing lots during their lifetime (Supreme Court 8th Civil Chamber, 2012/14922 E., 2013/17276 K.).

The deceased distributing their immovable properties to their heirs and transferring possession during their lifetime (Supreme Court 1st Civil Chamber, 2023/392 E., 2024/1852 K.; Supreme Court 1st Civil Chamber, 2022/6368 E., 2024/155 K.).

The distribution made by the deceased during their lifetime being established by on-site inspection, witness testimonies, and local expert statements (Supreme Court 7th Civil Chamber, 2011/5604 E., 2012/3464 K.).

The deceased retaining the usufruct right and transferring the bare ownership of their immovable properties to their heirs, and this transaction being accepted as made for the purpose of distribution (Supreme Court 1st Civil Chamber, 2024/2041 E., 2025/2359 K.)K.

Distributions in the nature of hand-to-hand donations made by transferring possession of unregistered immovable properties have been deemed valid without being subject to formal requirements (Supreme Court 1st Civil Chamber, 2021/6036 E., 2023/2496 K.; Supreme Court 8th Civil Chamber, 2012/517 E., 2012/8265 K.).

The recording of the distribution made by the testator during their lifetime in the village decision book and taking this declaration as basis (Court of Cassation, 8th Civil Chamber, File No. 2012/13495, Decision No. 2013/6427)K

Validity Conditions and Limits of Distribution:

Participation of All Heirs: For the distribution made by the testator during their lifetime to be legally valid, as a rule, all heirs must be included in this process or receive a share. Distributions made only among certain heirs (e.g., only male children) are considered invalid because they violate the rights of other heirs (Court of Cassation, 8th Civil Chamber, File No. 2011/3703, Decision No. 2012/664; Court of Cassation, 8th Civil Chamber, File No. 2011/4701, Decision No. 2011/5281)K. Furthermore, in a dissenting opinion in a decision of the Court of Cassation, 1st Civil Chamber, it was emphasized that a valid division cannot be spoken of if all heirs have not been given something, whether small or large (File No. 2018/3404, Decision No. 2021/1672)K.

Burden of Proof: The party relying on the partition is obliged to prove this claim (with evidence such as witnesses, expert witnesses, written documents, etc.) (Yargıtay 1. HD, 2024/3005 E., 2024/4772 K.)K. Courts resort to methods such as on-site inspection, listening to witnesses and local expert witnesses for the investigation of this claim (Yargıtay 8. HD, 2021/3392 E., 2022/7979 K.K; Yargıtay 1. HD, 2022/5615 E., 2023/2928 K.).

Purpose of Partition and Sham Transaction: The transfers made must have a genuine purpose of partition. If the purpose is to conceal assets from other heirs, the transaction can be invalidated due to a sham. However, if it is understood that the deceased made a partition that respected the balance of rights, the case may be dismissed on the grounds that there was no intention to conceal assets (Yargıtay 1. HD, 2017/1119 E., 2020/2321 K.). The defense of partition can, as a rule, only be raised among heirs; the defense of a transfer made to a non-heir as a partition has not been accepted (Yargıtay HGK, 2022/21 E., 2023/861 K.).

Requirement of Equality: In the partition made by the deceased during their lifetime or the division made among heirs, it is not mandatory for each heir to receive assets of mathematically equal value. The concurrence of the parties’ consents is sufficient (Yargıtay 1. HD, 2024/3005 E., 2024/4772 K.; Yargıtay 8. HD, 2012/11576 E., 2013/10370 K.).

In summary: Inheritance sharing while parents are alive is possible, in accordance with Article 678 of the Turkish Civil Code (TCC), through a written agreement in which the testator participated, or by the testator physically dividing their assets among all heirs and transferring possession while alive. In both cases, the existence and validity of the division are evaluated by the courts based on the specific characteristics of the concrete event, the evidence, and whether the rights of all heirs have been observed.

Why is Expert Legal Support Necessary for Inheritance Sharing While Parents Are Alive?

Inheritance divisions made while parents are alive are among the transactions that most frequently lead to disputes, cancellation lawsuits, and inheritance cases filed years later in practice. Although Article 678 of the Turkish Civil Code and Supreme Court precedents allow for such divisions under certain conditions, for a division to be legally valid, it is subject to highly technical requirements.

Specifically;

Whether the division was made in accordance with Article 678 of the TCC with the participation of the testator,

Whether the actual division was truly made for the purpose of allocation (division), or if it constitutes collusion by the deceased,

Whether the rights of all heirs were observed in this division,

Whether the proof of division is possible (witness, expert, on-site inspection, written document),

Whether the transfers made can later be subject to a reduction (tenkis) lawsuit or a title deed cancellation and registration lawsuit

However, it can only be properly determined with the legal assessment of an expert inheritance law lawyer.

As is often seen in practice, verbal distributions, distributions with incomplete participation, or transfers involving only some heirs made while the testator is alive are considered invalid after the testator’s death and lead to significant loss of rights. Indeed, Supreme Court decisions show that transactions are decided to be cancelled in cases where the distribution does not include all heirs or the purpose of distribution cannot be proven.

Therefore, inheritance distributions to be made while parents are alive;

by foreseeing their legal consequences,

in a way that will not become a subject of litigation in the future,

in accordance with Supreme Court precedents,

must be planned and executed with the expert lawyer support. Otherwise, transactions made for the purpose of “distribution” can, years later, turn into serious disputes and prolonged lawsuits among heirs.