Not everyone who is disinherited is really left empty-handed: in the event of succession, relatives are still entitled to a compulsory portion of the testator’s assets. We show you who is entitled to this mandatory part and how high it actually is.
What is the mandatory part in inheritance law?
You can freely dispose of it in a will or inheritance contract, like you Estate to be distributed after your death. This so-called testamentary freedom is assured in § 1937 of the Civil Code (BGB). You can designate anyone as your heirs, disinherit others, or suspend individual legacies.
However, German inheritance law places certain limits on your freedom to testify: According to Section 2303 of the German Civil Code, close relatives are also entitled to a certain proportion of your assets in the event of disinheritance. This is the so-called compulsory portion in German inheritance law.
Who is entitled to a mandatory share?
According to German inheritance law, “close relatives” include the spouse, the children and, if applicable, the testator’s parents and the descendants of his children. They are all entitled to a compulsory portion, which means that they are legally entitled to a compulsory portion of the inheritance.
- However, the parents and descendants of the children (grandchildren, great-grandchildren, etc.) are only entitled to a compulsory portion if there is no spouse and no children or they are no longer alive.
Calculate compulsory portion
The compulsory part of the inheritance is calculated according to §§ 1924 to 1936 BGB. It amounts to half of the statutory inheritance claim. Disinherited spouses, children and other beneficiaries of inheritance are therefore entitled to 50 percent of their statutory inheritance as beneficiaries.
The following examples show how high the mandatory portion of the inheritance is for all relatives.
Mandatory part of the spouse
The legal inheritance of the spouse is determined by whether there are other heirs besides him. In addition, it also plays a role in which property the spouses lived when the testator died.
- If there are first-order heirs (children or grandchildren) in addition to the spouse, the surviving partner is legally entitled to a quarter (1/4) of the estate in the event of inheritance. The mandatory part of disinheritance is therefore one eighth (1/8).
- If there are second-order heirs in addition to the spouse, the legal inheritance for the surviving partner in the event of succession is half (1/2) of the estate. Accordingly, the compulsory portion for disinheritance is a quarter (1/4).
- If the testator’s grandparents are entitled to inheritance (3rd order heirs), the compulsory portion of the surviving spouse’s disinheritance is also a quarter (1/4) of the estate.
Mandatory part of the spouse in the community of gain
Most married couples live in the property community of the gain community. This comes into force with every marriage and when entering into a civil partnership by law, unless otherwise stated Marriage settlement gives.
- If the surviving spouse is disinherited from a profit-sharing community, he or she may have additional claims against the heirs in addition to his mandatory inheritance part of a quarter (1/4) of the assets pursuant to §§ 1371 ff. BGB.
- If the deceased partner made a higher profit than the survivor during the marriage, he is entitled to half of the surplus in the event of inheritance.
- This regulation is referred to as a "property law solution".
Mandatory part of the spouse in case of separation of property
If the spouse lived in the property separation regime when the first partner died, the children and the surviving partner inherit half of the assets according to the legal succession. In the case of disinheritance, the compulsory portion for the surviving partner is therefore a quarter (1/4) of the estate.
Mandatory part of the spouse in community of property
In the case of a community of property, no special regulations apply. The surviving partner already owns half of the common assets. In the case of inheritance, the other half is divided between the spouse and the heirs who are entitled to inheritance, as described above.
In addition to his mandatory inheritance law portion, the surviving spouse receives the wedding gifts as well as all household items that he needs to keep an adequate household in accordance with § 1932 BGB.
Overview: mandatory part of the spouse
|With 1 child||With 2 children||With more than 2 children|
|Compulsory part in separation of goods||1.4||1.6||1.8|
|Compulsory share in the profit sharing community (property law solution)||1/8 + profit equalization||1/8 + profit equalization||1/8 + profit equalization|
|Compulsory share in community of property||1.8||1.8||1.8|
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Compulsory portion of the children
The compulsory portion for the children is calculated according to how high the compulsory portion is for the spouse. The spouse’s inheritance is always determined first. If there are multiple children, they all inherit equally.
- Upon the death of the last parent, the children inherit all of the assets, according to the legal succession. In this case, the compulsory portion claim against the heirs of the will is half the estate.
- If a child dies before the parent’s death, the inheritance rights are transferred to their own children according to inheritance law.
Compulsory portion of the children in the Berlin Testament
The Berlin Testament is a joint will in which the two spouses mutually act as sole heirs. The children are of course also entitled to the compulsory portion in this case.
In order to prevent children from claiming their compulsory portion in the event of inheritance, some married couples therefore add the so-called “compulsory portion clause” to their Berlin will. This disinherits the children in the event that they assert their inheritance rights to the compulsory portion after the death of the first spouse.
Compulsory part of the parents
As heirs of the second order, the parents of the deceased are only entitled to inherit according to § 1930 BGB if there are no heirs of the first order (children and their descendants). When the first spouse dies, the compulsory portion for the parents is then a quarter (1/4) of the estate. If a single person or a surviving spouse dies childless, the parents are entitled to half (1/2) of the estate as a mandatory part.
Compulsory part of the siblings
The siblings of the deceased – as descendants of his parents – also belong to the heirs of the second order. The same rules apply to them as to the parents. According to German inheritance law, however, you are only entitled to inheritance if the testator’s parents have also already died (tribal principle).
In these circumstances, the compulsory portion for the siblings is (1/4) of the estate if the first spouse dies childless, and half (1/2) of the estate if he dies unmarried or as the last spouse.
Loss of compulsory portion and withdrawal of compulsory portion
In certain circumstances, the testator can even deprive the heirs of their compulsory portion – in addition to disinheritance. Possible reasons for a withdrawal of compulsory portion are specified in § 2333 BGB:
- The heir seeks the life of the testator, his spouse, one of his descendants or another person close to the testator.
- The heir has committed a crime against the testator, his spouse, one of his descendants or another person close to the testator.
- The heir deliberately physically abused the testator or his spouse.
- The heir did not meet his maintenance obligation towards the testator.
- The heir was sentenced to at least one year in prison for a deliberate crime, or ordered to be placed in a psychiatric or detention center.
The testator must order the deprivation of the compulsory portion according to § 2336 BGB in his will or inheritance contract and also state the reason for the deprivation of the compulsory portion.
Who has to pay the mandatory part?
The heir or community of heirs of the deceased is obliged to fulfill the compulsory portion, i.e. to pay out the compulsory portion of the inheritance to the person entitled to the compulsory portion.
How to claim the mandatory part
- Request a detailed inventory of the estate from the heir.
- Check that the directory is complete and that the inheritance value determined by the heirs is correct.
- Use the list of estates to determine your compulsory portion.
- Request the heir in writing to pay out your mandatory inheritance part.
After the will has opened, you have three years to claim your mandatory portion. After that your claim becomes time-barred.
Can you sue the mandatory part?
If the heir refuses to pay the compulsory portion, you can bring an action against the compulsory probate court. The payment is then ordered by the court.
Compulsory portion supplement
If the testator makes extensive donations during his lifetime and thereby reduces his estate value, heirs entitled to the compulsory portion can claim a supplement to the compulsory portion.
The amount of the heirs’ compulsory supplementary right depends on the value of the gift. All donations from the past ten years are included in the calculation; Christmas and birthday presents are not counted.
- Depending on the time of the gift, heirs entitled to compulsory participation are entitled to a supplementary share of between 10% and 100% of the gift value.
- The longer the donation goes back, the lower the requirement for supplementary compulsory parts.
- In principle, the heirs must complete the mandatory parts. If the estate of the testator is not sufficient, the person entitled to the compulsory portion may request the gift to be given back from the recipient in accordance with § 2329 BGB.
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