Inherit and inherit: what needs to be considered

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Those who do not regulate their inheritance are not only putting their blessing at risk. Expert Gilbert Häfner explains what needs to be considered when inheriting and inheriting and whether gifts are a useful alternative during one’s lifetime.

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Keyword: mandatory part

Can you disown your own child by means of a will in such a way that it is completely empty in the case of inheritance?

In principle, you are free to determine who should become heirs (so-called freedom of testimony, § 1937 BGB). Own children can therefore be excluded from inheritance by will. However, the law assures the descendants (as well as the spouse or the testator’s parents if they would have been legal heirs without a will)), the so-called compulsory portion (§ 2303 BGB). The persons entitled to the compulsory portion are then entitled to payment of money in the amount of half the value of the statutory portion of the inheritance against the heir or heirs.

Can the testator make the compulsory portion void by giving away substantial parts of his property during his lifetime?

The compulsory portion enjoys strong legal protection. The beneficiary even participates in donations that the testator gave to another less than ten years before his death. As a supplement to his compulsory portion, the beneficiary can demand the amount by which the compulsory portion increases if the gift is added to the estate (§ 2325 BGB). The donation is taken into account in full within the first year before the inheritance, and in each subsequent year before the inheritance by one tenth less. This so-called compulsory supplement is principally directed against the heir. If the recipient is not obliged to pay for legal or factual reasons or if the heir himself is entitled to a compulsory portion, the recipient can be claimed (§§ 2329, 2326 BGB).

The testator originally had a fortune of 100,000 euros, of which he gave away 75,000 euros to his illegitimate partner in the last year before his death. The testator’s remaining assets of 25,000 euros are inherited by his only child as the legal heir alone. To supplement the mandatory part of this child, the testator’s illegitimate partner must give him 25,000 euros from his donation, so that, taking into account the inherited amount of 25,000 euros, he receives a total of 50,000 euros and thus half the value of the statutory inheritance portion for the child as sole heirs without the gift would have been 100,000 euros.

If the gift to the testator’s illegitimate partner was almost five years ago at the time of his death, the illegitimate partner only has to spend 10,000 euros. Because the gift is then only to be taken into account with 6/10, i.e. an amount of 45,000 euros, which increases the value of the estate to 70,000 euros (25,000 euros + 45,000 euros) and the mandatory portion to 35,000 euros (70,000 euros x 1 / 2) would amount to. The difference between this mandatory part and the inherited amount of 25,000 euros is 10,000 euros.

Does the compulsory supplement supplement also apply to gifts made by the testator to his spouse?

In the case of a gift, the spouse is also exposed to the compulsory supplementary claim of the child’s descendants. He is even worse off than other beneficiaries because the ten-year period does not start before the marriage is dissolved. Therefore, spouses cannot practically limit the compulsory portion of children through mutual gifts.

The testator originally had a fortune of 100,000 euros, which he gave as a whole twelve years before his death to his wife, who lived with him in the estate community of the gain community. The testator, who is therefore wealthy at his death, is inherited by law by his wife and his only child at ½ each. The child who leaves empty-handed due to a lack of inheritance can request the wife to donate 25,000 euros from the gift to supplement his compulsory portion, so that he receives half the value of the statutory portion of the inheritance, which one for the child as heir without the gift would have been 50,000 euros (100,000 euros x ½).

Keyword: legal succession

Who inherits when no will has been made?

If the succession is not regulated by a will (or an inheritance contract), the legal succession occurs. To this extent, the spouse and relatives of the testator are favored. The relatives are divided into heirs of different orders. The descendants of the deceased belong to the 1st order (children, grandchildren, great-grandchildren etc.). If there is a first-order heir, then heirs of the second or more distant order (such as the testator’s parents and their descendants are not used.

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Write the last will: how to properly regulate the estate

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In the case of statutory heirs of the 1st order, a descendant (son or daughter) living at the time of the inheritance excludes the descendants (grandchildren and great-grandchildren) related by him to the testator from the succession. In the place of a descendant who is no longer alive at the time of the inheritance, the descendants related by him to the testator (so-called inheritance by tribe). Children, even within a tribe, inherit equally.

The testator leaves behind a son, who in turn has two children of his own. The testator also had a daughter who had died before him and left two children who were still alive at the time of the testator’s death. In this constellation, the son of the testator inherits half, the other half of the inheritance is distributed ½ each between the two children of the deceased daughter of the testator. In contrast, the children of the testator’s living son go empty-handed in the case of inheritance.

To what extent does the deceased’s spouse inherit in addition to his or her children, and what applies if the deceased had no children?

The surviving spouse of the testator is – initially independent of the matrimonial property regime – in addition to descendants of ¼ legal heir. If there are no descendants, the spouse inherits ½ alongside second-order relatives and grandparents. If the spouses, as is the rule, have lived in the statutory community of property of the gain community, the inheritance mentioned increases by ¼, i.e. in addition to biological children to ½ and in the other variant to ¾.

It can happen that the divorced spouse of the deceased also inherits the deceased?

After a separation, the legal right of inheritance of the spouse does not end with the divorce, but already if the conditions for divorce were met at the time of the testator’s death and the testator applied for or consented to the divorce (§ 1933 BGB) , A divorced spouse may, however, indirectly benefit from the inheritance. Something like that happens, if the divorced spouses have a single child and the child dies after inheriting the deceased parent without leaving their own descendants. In this case "immigrated" the assets of the deceased divorced spouse over the subsequently deceased common child to the surviving divorced spouse.

A non-marital partner of the deceased also inherits?

Since illegitimate partners are neither married nor related to one another, they do not inherit from one another by law. However, there is the possibility of appointing the illegitimate partner as an heir by means of a will (or contract of inheritance).

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Keyword: will

What should be considered when drafting a will?

A private will is only effective if certain formal requirements are observed (§ 2247 BGB): It must be made by the person who has his or her assets for the own Death, be completely handwritten and signed. If the will is written with the typewriter or on the computer or the signature is missing, it is ineffective overall; this has the consequence that the legal succession intervenes. The signature must also cover the text spatially and therefore complete it. It is strongly recommended that the time and place of writing be stated in the will; since a new one can wholly or partially cancel the old will, this is the only way to determine easily and reliably which one is the younger of the two or the youngest of several. In terms of content, the testament must above all indicate which person should receive the existing assets as a whole – possibly to a certain fraction among others – and thus become heirs.

Can individual objects be bequeathed to different people through the will??

On the one hand, the testator has the option of appointing several people as heirs in the will and thereby determining the division of the estate among the heirs by means of a divisional order (section 2048 sentence 1 BGB). On the other hand, the testator can appoint one or more persons as heirs by means of a will and thereby oblige the heir (s) by means of a legacy to hand over individual estate objects to one or more third parties (§§ 2147 ff. BGB). Such a third party is not an heir, but a legatee. It is important that the testator clearly states in the will which alternative he has chosen. If there is no such clarification and only individual assets have been turned to a person, then in doubt it cannot be assumed that he should be heir; this even applies if this person is designated as an heir in the will (section 2087 (2) BGB).

What is a "Berlin testament"?

The so-called Berlin Testament is a special type of joint will in which spouses mutually act as sole heirs to ensure that the long-living are cared for. At the same time, they stipulate in the will that after the death of the longer-living spouse, the mutual inheritance of one or more other persons should fall, whereby these persons do not necessarily have to be the children together.


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