Children disinherit (with & without mandatory part) – 2 variants at a glance
Inheritance law gives every citizen the freedom to decide what to do with his or her assets if they die. In this way, the legal succession can be adapted to one’s own wishes and ideas by disposing death routes, e.g. wills. In this context, certain individuals can also be completely excluded from the succession. This is known as disinheritance.
The reasons why someone chooses to disinherit their children can vary widely. In addition to conflicts within the family, previous donations can also be a reason why parents disinherit your children. Appropriate wording only makes sense if the child is legally entitled to the heritage Has.
|Statutory inheritance||No statutory inheritance claim|
|illegitimate children||drawing children|
|legitimized children (father & Mother only marry after birth)|
The legal requirements for disinheritance result from the Civil Code (BGB). So it says in § 1938 BGB "The testator can exclude a relative, the spouse or the life partner from the legal succession, without appointing an heir." This means that a testament is necessary to disinherit the children. By definition, wills are documents through which the author can make arrangements for inheritance. In this context, disinheritments are valid for both notarized and handwritten wills. If a disinheritance should be part of the will, you should still contact a notary with this matter. This is the only way to ensure that the decision is legally secure and difficult to contest.
The Berlin Testament
Child disinheritance is no longer uncommon. The reason for disinheritance is by no means always a conflict between the generations. Within the framework of the Berlin will, spouses often act as sole heirs and thus initially ignore the children. The basic idea here is to secure the longer-living spouse. This is important, for example, in the case of shared real estate, which may have to be sold in order to pay the children their compulsory portion. However, it is not possible to completely disinherit the children under the Berlin will. They are mostly used as heirs and have at least one right to the compulsory portion.
The mandatory part
Basically, the mandatory portion depends on the amount of the inheritance legally due to the heir. The legal succession determines which descendant how much from the heir, unless the testator has made any corresponding provisions in the will. According to § 2303 BGB, the compulsory part is "half the value of the statutory inheritance."
Physical and adopted children regularly inherit in equal parts. For example, if the testator is not married and has two children, both children inherit half of the inheritance. If, on the other hand, he only wants to inherit one of the two children, the disinherited child still receives his compulsory portion. This still has to be deducted from the estate. This means that the disinherited child can demand a quarter of the inheritance, even though he was excluded from the inheritance by will.
The example is more complicated when the testator was married. Depending on the matrimonial property regime, spouses have other statutory rights to the inheritance that can also affect the proportion of children.
Disinherited without a compulsory portion
It is difficult to completely cancel the compulsory portion. For such forfeiture of the claims, rare exceptional cases must be given his. For example, the testator must be able to present reasons that invalidate the legally entitled heir’s entitlement to a compulsory portion. Granting the estate to the heir must be fundamentally unreasonable for the testator.
A withdrawal of compulsory parts is possible under the following exceptional cases (§2333 BGB):
- The heir seeks the life of the testator or a person close to him
- The heir is guilty of a crime or a serious willful misconduct against the testator or a position that follows him
- The beneficiary violates his legally regulated maintenance obligation towards the testator
- The heir was sentenced to imprisonment of at least one year without probation for an intentional crime
If all contact with the family is broken, this situation can also justify the children’s disinheritance. According to the law, however, this is not sufficient for the compulsory portion to lapse. Furthermore, the right to withdraw the mandatory portion expires by forgiving said exceptional cases. The result is the ineffectiveness of the disinheritance contained in the will, including the compulsory portion.
Mandatory partial waiver & Erbverzicht
The legally required mandatory portion can also be circumvented by waiving the mandatory portion or inheritance. Waiver does not necessarily mean that you go empty-handed. Waiver of compulsory part and inheritance often go hand in hand with consideration. On the other hand, such a waiver naturally has consequences.
In any case, it is important to choose between Mandatory partial waiver and to renounce inheritance. So the waiver of the compulsory part means only that you give up the right to the compulsory part. Unless otherwise agreed, this decision affects not only the waiver, but also their other descendants. A waiver of the mandatory part does not mean that nothing is inherited. It is still possible to be listed as an heir in the will.
The Erbverzicht goes much further in comparison. Here the heir assigns his claims completely. This agreement also includes the mandatory part. The waiver of inheritance always automatically includes the waiver of the compulsory portion. For both ways there is one written contract between the testator and the waiving heirs is indispensable. In addition, the agreement must certified by a notary and be agreed before the testator dies.
About the consequences Such a waiver should definitely be considered in advance. Among other things, it makes sense if a person is to be supported during his lifetime or if the compulsory portion is to be prevented. In addition, an inheritance waiver is recommended if the family business is transferred in return, thereby ensuring the continued existence of the company. In this case, the waiver of inheritance prevents the company from having to be sold or divided in order to settle the heirs’ compulsory portion claims. However, such agreements to waive the inheritance and compulsory portion can be challenged during the testator’s lifetime.
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