German Inheritance Law: The Compulsory Share

German Inheritance Law: The Compulsory Share

In principle, under German inheritance law the testator is free to dispose of his estate. However, some privileged persons may claim the compulsory portion (Pflichtteil). The article answers the most frequently question regarding the German statutory share of the the surviving spouse and descendents of the decedent.

Does the German Compulsory Share invalidate the Will?

No, the German compulsory share (pflichtteil) does not invalidate the Will. However, the person entitled to the compulsory share may claim an amount of money from the beneficiaries under the Will. 

Can the person entitled to the Compulsory Share claim Specific Estate Assets?

No, as it is a claim in money, the person entitled to the Compulsory Share may not claim a specific asset. 

Who is entitled to the Compulsory Share?

Pursuant to § 2303 BGB the following persons are entitled to receive a statutory compulsory share if they are excluded from succession by a testamentory disposition

  • the descendants of the deceased;
  • the spouse;
  • the parents of the deceased.

Are Grandchildren entitled to the German Compulsory Share?

Descendants of the deceased are not entitled to receive a compulsory share if under the rules of intestate succession they would have been excluded by other relatives. See § 2309 BGB. Thus, as the children of the deceased exclude the grandchildren of the deceased from succession, the grandchildren of the deceased are not entitled to a Pflichtteil if the testator is survived by the parents of the grandchild.

Are Brothers and Sisters of the decedent entitled to the Compulsory Share?

No. Siblings are never entitled to the compulsory share. 

What are the Rights of the Surviving Spouse?

If the spouses were married under the statutory matrimonial property regime of Community of accrued gains (Zugewinngemeinschaft), he/she is entitled to 1/8 of the estate and equalization of accrued gains (Zugewinnausgleich). If the spouse was not completely excluded, he/she is entitled to 1/4 of the value of the estate. See §§ 1931(1), 1371(1) BGB. Alternatively, the spouse may disclaim the inheritance and claim 1/8 and equalization of the surplus.

Is a Same-sex Partner entitled to the Compulsory Share?

A registered same-sex partner (eingetragener Lebenspartner) is entitled to receive the compulsory share. See § 10(4) LPartG.

Who is liable to the German Compulsory Share?

The heir (Erbe) is the debtor of the Compulsory share. See §2303(1) BGB. Several heirs are liable as joint debtors. See § 2058 ff BGB.

When is the Compulsory Share Payable?

The compulsory share is payable upon the death of the testator. See § 2317 I BGB. If the immediate payment of the compulsory share would unfairly affect the heirs (e.g. because they must sell the family home), they can claim postponement of payment.

What happens if a person entitled to the Compulsory Share is not entirely desinherited?

If person entitled to a compulsory share- according to the will - only entitled to receive a share lower than the Pflichtteil, he has a supplementary claim under § 2305 BGB (Zusatzpflichtteil) under §2305 BGB

How is the Compulsory Share determined?

The compulsory share amounts to half of the value of the intestate share (gesetzlicher Erbteil). See §2303 (1) BGB. In determining the compulsory share, the shares of persons who were disinherited, who have waived their rights or who are unworthy of inheriting are not to be counted. However, the share of a person who has renounced the inheritance is to be counted. The value of the legacy (Vermächtnis) at the time of death is crucial. See § 2311 BGB.

How do the Persons entitled to the Compulsory Share get the necessary Information for Determination of his Rigths?

The persons entitled to the compulsory share can claim from the heir an inventory of the estate (Nachlassverzeichnis) and an appraisal of the value of the assets of the estate. See §2314(1) BGB.

What happens if the Deceased gave away Property during his Lifetime?

Even if the testator gave away property during his lifetime the compulsory share according to § 2303(1) BGB is calculated only on the basis of the reduced value of the estate. However the person entitled to the Pflichtteil may – under certain conditions - have a claim to additional payment (Pflichtteilsergänzungsanspruch) under § 2325 BGB ("claw back"), e.g. if the deceased gave away property within a period of 10 years without any adequate compensation (e.g. money or services).

Who is liable for the Claw Back Claim?

In the first line the heir (Erbe) is liable for an additional claim under § 2325 BGB. If the heir himself is entitled to a compulsory share, he can refuse an additional payment, insofar as this payment would affect his own Pflichtteil. See §2328 BGB. In this case the recipient of the gift is liable in so far as the heir is not obliged to an additional payment. See §2329 BGB. The sole heir can also claim an additional payment to his inheritance. See §2329(1) BGB.

Do Payments to the Entitled Person decrease the Compulsory Share?

If the testator made payments to the person entitled to the Pflichtteil during his lifetime decrease the compulsory share if this was stipulated when the gift was made. See §2315 BGB.

Can the Compulsory Share be waived during the Lifetime of the Decedent? 

Persons entitled to the compulsory share and the additional claim under § 2315 BGB may waive their rights during the life of the decedent by notarized contractual agreement. 

When does the Compulsory Share become Time Barred?

The time limitation period is 3 years. See § 195 BGB. The time limitation period commences at the end of the year in which the person entitled to the compulsory share receives knowledge of the death of the testator and the disinheritance.

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