Matrimonial property and succession matters for Turkish citizens living abroad give rise to complex issues due to the overlap of multiple legal systems. This article examines the applicable law under MÖHUK, interaction with the EU Succession Regulation 650/2012, and practical issues in major diaspora countries such as Germany and the Netherlands.
For the millions of Turkish citizens living abroad, matrimonial property and succession matters give rise to complex issues due to the interaction of multiple legal systems. Conflicts between the law of the country of residence and Turkish law produce significant practical consequences in fundamental matters such as the division of assets, the rights of the surviving spouse, transfer to children, and tax obligations. The Turkish Private International Law Act No. 5718 (MÖHUK) and the EU Succession Regulation No. 650/2012 play a determining role in the management of these legal conflicts.
1. Law Applicable to Matrimonial Property: MÖHUK Article 15
Under Article 15 of MÖHUK, party autonomy in choice of law is the fundamental principle in determining the law applicable to the matrimonial property regime. The spouses may choose either the law of their habitual residence at the time of marriage or at a later date, or the law of their nationality. Where no choice of law has been made, the law of common nationality at the time of marriage applies; failing that, the law of common habitual residence; failing that, Turkish law. This tiered approach aims to apply the law that reflects the genuine connection between the spouses.
2. Interaction with the EU Matrimonial Property Regulation
The European Union has introduced rules on jurisdiction, applicable law, recognition, and enforcement in matters of matrimonial property regimes through Regulation No. 2016/1103. The Regulation has been applicable in 19 EU member states since 29 January 2019. As Türkiye is not an EU member state, the Regulation does not apply directly to Turkish citizens; however, the Regulation's provisions play a determining role in matrimonial property disputes involving Turkish citizens living in EU member states. This situation creates a complex legal landscape regarding choice of law and applicable law issues.
3. Law Applicable to Succession: MÖHUK Article 20
Article 20 of MÖHUK introduces different rules on the law applicable to succession. Accordingly, succession is governed by the national law of the deceased. However, Turkish law applies to immovable property located in Türkiye. With respect to grounds for opening of succession, acquisition, and partition, the law of the place where succession is opened applies. This multi-layered structure produces complex outcomes, particularly in successions of Turkish citizens who hold assets both in Türkiye and abroad.
4. EU Succession Regulation 650/2012 and the Habitual Residence Principle
EU Succession Regulation No. 650/2012 has applied in all EU member states except Ireland and Denmark since 17 August 2015. The Regulation adopts the criterion of the deceased's "last habitual residence" for jurisdiction and applicable law in succession matters. This approach differs fundamentally from the nationality-based criterion under Turkish law. In the case of the death of a Turkish citizen living in Germany, the natural tendency of Germany to apply German law under the EU Regulation may conflict with Türkiye's tendency to apply Turkish law as national law. Article 22 of the Regulation provides an exception to the habitual residence rule by allowing the choice of national law in a will, which constitutes a practical exit route for Turkish citizens.
5. Turkish Citizens in Germany: Practical Issues
Approximately three million persons of Turkish origin live in Germany, a significant portion of whom retain Turkish citizenship. Germany accepts that the Turkish-German Treaty on Inheritance and Estate of 28 May 1929 remains applicable; this Treaty provides for the law of the place of location for immovable property and the national law of the deceased for movable property. This special regime creates a unique balance between the EU Succession Regulation and Turkish law. In practice, processes such as obtaining a certificate of inheritance (Erbschein/veraset ilamı) in both countries, land registry procedures, closure of bank accounts, and fulfilment of tax obligations may entail significant time and cost.
6. The Netherlands, Belgium, and Other Diaspora Countries
Similar legal issues arise in countries with significant Turkish diaspora populations such as the Netherlands, Belgium, Austria, and France. The subjection of these countries to the EU Succession Regulation ensures the application of the "last habitual residence of the deceased" criterion in succession cases. Where Turkish citizens have not chosen their national law in a will, their assets become subject to the law of the country where they reside. This may produce outcomes different from the forced heirship rules under Turkish law. For effective succession planning, choice of law in a will is of paramount importance.
7. Practical Recommendations and Legal Planning
For Turkish citizens abroad to pursue a successful strategy in matrimonial property and succession matters, the following is recommended: documenting choice of law by entering into a matrimonial property regime contract before marriage, choosing national law under Article 22 of the EU Regulation when drafting a will, preparing an inventory of assets located both in Türkiye and the country of residence, taking into account double taxation treaties, and reviewing the legal situation at regular intervals. For advisory services on international matrimonial property and succession law, please contact us at info@guzeloglu.legal.