Intestate Succession in Germany

Intestate Succession in Germany

Intestacy

The rules of intestate succession (gesetzliche Erbfolge) in Germany are in §§ 1924 to §§ 1936 of the German Civil Code (BGB). The intestacy rules apply if,

  • There is no will;
  • The will is invalid; or
  • The will does not cover the whole estate (Nachlass). 

Claims of the Surviving Spouse and Registered same-sex partner 

If the deceased's spouse was still alive at the time of the deceased´s death, the spouse's intestate share (gesetzlicher Erbteil) is to be determined first. The surviving spouse of the deceased is entitled to receive

  • 1/4 of the estate (Nachlass) if there are any surviving children (or their issue) of the deceased
  • 1/2 of the estate if the deceased is survived by his/her parents or their issue (i.e. sisters/brothers or nieces/nephews of the deceased) or grandparents
  • The total estate if the deceased is not survived by any issue or parents. See § 1931 BGB

Additionally, the surviving spouse has a right to

  • household and personal effect / personal chattels (Hausrat) and
  • the wedding presents (preferential benefit). See § 1932 (1) BGB

The same rules apply to a surviving registered same-sex partner (eingetragener Lebenspartner). 

Divorce and Pending Divorce Proceedings 

The spouse is not an intestate heir if, at the time of the deceased`s death, the marriage has been dissolved (e.g. by divorce) by a final court judgment.

Seperation of the spouses does not end the claims of the surviving spouse.  However,  the spouse is not entitled to receive a share of the estate if at the time of the deceased's death

  • the conditions for the dissolution were fulfilled and
  • the deceased (!) had already filed the respective petition. See § 1933 BGB. 

Impact of Matrimonial Property Regime of the Spouses

The share of the surviving spouse is modified depending on the statutory matrimonial property regime the deceased and his spouse lived under at the time of the deceased`s death. The statutory “matrimonial property regime” is a set of mandatory rules which apply automatically to all married couples married under German law. There are 3 matrimonial property regimes under German law:

Please note: If the spouses were married under foreign law, however, German law applies with regards to intestacy, difficult questions may arise. 

Intestate Share in Case of Property Regime of Community of Accrued Gains

If the spouses do not agree otherwise in a marriage contract, the spouses are married in the property regime of accrued gains (Zugewinngemeinschaft). See § 1363 BGB. In this case, the surviving spouse's intestate share will be increased by one fourth as a lump sum. See §§1931 (3), 1371(1) BGB.

Intestate Share in Case of Property Regime of Separation of Property 

If the spouses agreed in a marriage contract the property regime of separation of property (Gütertrennung), the surviving spouse inherits share depends on the number of children (that inherit): 

  • If there is one child (or issue if predeceased), the spouse receives 1/2
  • If there are two children (or issue if predeceased), the spouse receives 1/3
  • If there are more than two children, however, the spouse's share is 1/4.

Intestate Share in Case of Property Regime of Community Property 

If the spouses agreed in a marriage contract the marital property regime of community of property (Gütergemeinschaft), the provisions of § 1931 (1) and (2) BGB apply without modification. In particular, the spouse's share remains one fourth, even if he inherits together with only one or two children. The deceased's share in the joint property (Gesamtgut) falls to his estate and is inherited according to the provisions of the law of succession. See § 1482 BGB.

The spouses may provide that after the death of one of them the community will be continued between the surviving spouse and their joint issue (§ 1483 BGB). In this case, the deceased's share in the joint property does not fall to his estate and the joint ownership is continued between the surviving spouse and those descendants who are called to inherit under the rules of intestate succession. Only the deceased's separate and reserved property is then inherited according to the principles of the law of succession. See § 1483(1) BGB.

Claims of the next kin under German Intestacy Rules

After the share of the spouse has been deduced from the estate, the other heirs are to be determined. As in most jurisdictions the relatives of the deceased, especially his issue, are the first to claim the instate share. If there is more than one relative of the deceased, the following principles apply.

Classes

First, the class of the inheritance right has to be determined (Ordnung). Any beneficiary of a foregoing class excludes any potential beneficiary of a higher class, see § 1930 BGB:

  • Class one (see § 1924 (1) BGB): issue of the deceased and their issue, e.g. the children, the grandchildren and great-grandchildren of the deceased.
  • Class two (see § 1925 (1) BGB): the parents of the deceased and their issue, e.g. the brother or sister, nieces and nephews of the deceased.
  • Class three (see § 1926 (1) BGB): the grandparents of the deceased and their issue, e.g. uncles, aunts and cousins of the deceased.
  • Higher classes are determined according to the same system. See §§ 1928, 1929 BGB.

Parentage is determined according to the respective rules of family law. Illegitimate and adopted children have the same legal status as other children.

Inheritance Rights in one Order

Within the same class the inheritance right is determined as follows:

Class One

The issue of the deceased inherits inherits in equal shares, see § 1924 (4) BGB. Living children of the deceased exclude the grandchildren of the deceased from any inheritance rights. They are represented by their father / mother ("principle of representation"). Where one of the deceased's children has died before the deceased, the deceased child's share passes over to his children (§ 1924 (3) BGB). If the issue of de deceased had more than one child, each of his children inherits an equal share, see § 1924 (4) BGB.

Second Class

If both parents are still living at the time of the deceased`s death, they inherit the estate in equal shares excluding all other members of their class. See § 1925 (2) BGB.

If one parent has died before the deceased, his share of the estate passes to his issue. See § 1925 (2) 1 BGB.

If the pre-deceased parent does not leave any descendants his share falls to the surviving parent. See § 1925 (2) 2 BGB). If both parents of the deceased have died before him, each of the parents' shares passes to their issue. See § 1925 (2) 2 BGB). 

Third Class

If all grandparents are still living, they inherit in equal shares excluding the other members of their class. See § 1926 (2) BGB. When at the time of the deceased death one of his grandparents had predeceased, his share passes over to his issue. If the deceased grandparent had no issue, his share passes over to his spouse or the spouse´s issue. If the spouse predeceased and had no issue, the other pair of grandparents or their issue receives their share. See § 1926 (2), (4) BGB

Further Classes

Intestate succession is determined by the degree of relationship. The degree of relationship is determined by the number of intervening births. See § 1589 S. 1 BGB.

If there are several relatives of the same degree, they inherit equal shares. See §§ 1928 (3), 1929 (2) BGB. 

Rate this article
 
 
 
 
 
 
 
3 Rates (100 %)
Rate
 
 
 
 
 
 
1
5
5
 

Do you have any questions? We would be pleased to assist you. To make getting in touch with us as simple and efficient as possible for both parties, we ask you to primarily use our contact form for your questions. Please describe the matter as clearly as possible. You can also add attachments. After sending your inquiry, the attorney responsible will contact you either by telephone or by e-mail within 24 hours and, where necessary, pose further questions or submit a proposal for consultation.  

Of course, you can also call us directly to make an appointment for a personal consultation or telephone consultation (find contact details here). All potential clients will be informed in advance of any costs that may be incurred during the initial consultation

Formular
captcha
Attach documents to your message to us (max 5 MB).