6 February Kahramanmaraş Earthquake left behind not only a lot of drama and debris, but also a lot of legal problems. One of these legal problems is inheritance.
Normally, inheritance comes into effect upon the death of a person. In order to prove the death, the body must be found. After the corpse is evaluated by a physician, a death certificate is issued for the deceased and in accordance with the Law on Population Services, the competent authorities notify the Population Directorate of the death and the person’s civil registry is closed as ‘dead’.
However, in some cases, the body or even a part of the body of the person cannot be found and therefore death cannot be proved in this way. Despite the fact that the body of the person is not found, he/she can be registered as dead in the civil registry, his/her assets and inheritance will pass to his/her heirs, and his/her marriage will be terminated. In the Kahramanmaraş Earthquake, some of our citizens are still unaccounted for. The legal situation of these citizens can be resolved in two ways; the decision of absenteeism and the presumption of death!
What is the presumption of death?
According to Article 31 of the Turkish Civil Code (TCC), a person is presumed to be dead even if his/her body has not been found, if he/she disappears in circumstances where his/her death is presumed to be certain.
To explain a little more; if it cannot be determined whether a person is really dead because his/her body cannot be found, that person is legally considered to be really dead, provided that he/she has disappeared in an environment where his/her death can be regarded with absolute certainty. For example, the bodies of those on board an aeroplane that explodes in mid-air are considered dead, even if no parts of them are found, since they have disappeared in a situation where their death can be regarded as absolute.
If those on board a ship that sinks in a storm in the ocean are not found despite all searches, they are presumed dead. Those who were in a coal mine when the mine collapsed as a result of an explosion and collapse of the mine, but whose bodies could not be found, are also presumed to be dead.
The peculiarities of these cases are that in these cases where the person whose body is not found is missing, the death of the person is regarded as absolute. If there is any doubt that the person is dead, the presumption of death is not valid and the person is not considered dead.
Governor or district governor
In my opinion, the presumption of death shall also apply to the earthquake victims who were definitely in the collapsed buildings of the Kahramanmaraş Earthquake but whose bodies were not found. What is important here is that it must be known with certainty that the earthquake victim was in the collapsed building. Even if no news has been received yet from those who are not known whether they were in the collapsed building during the earthquake, the presumption of death will not apply to them.
The competent authority to apply the presumption of death to a person who is missing in an event where his/her death is absolutely certain is the governor or district governor, who is the highest local authority of the relevant place. With the decision of the governor or district governor, the person is recorded as ‘dead’ in the registry.
In accordance with the presumption of death, the marriage of the person who has been declared ‘dead’ shall be terminated as if the person had actually died, and his/her surviving spouse and children may be granted widow’s and orphan’s pensions. The property included in the estate he/she left shall be inherited by the heirs.
Simultaneous losses
If it cannot be proved which of more than one person died first or later, they are all deemed to have died at the same time in accordance with the ‘presumption of joint death’. Article 29 of the TMK tells us this.
For example, if all or some of the parents and children died in the earthquake and it cannot be determined which of them died first, it is legally accepted that all of them died at the same time. The importance of this in terms of inheritance law is as follows: Those who are considered to have died at the same time cannot be each other’s heirs, their inheritance passes to their legal heirs. For example, if a husband, who has one child each from his divorced and married wives, is considered to have died together with his married wife in the earthquake, since he cannot be the heir of his married wife, the one-fourth share of inheritance that would normally fall to him from his married wife will not pass first to him and then to his child from his divorced wife.
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