German Inheritance Tax

Applicable Tax Laws

The taxation of estates in Germany is codified in the Inheritance and Gift Tax Act (Erbschafts- und Schenkungsteuergesetz) - hereinafter ErbSt. Additionally, other German tax laws, such as the German General Fiscal Code (Abgabenordnung) - hereinafter AO - and the Valuation Act (Bewertungsgesetz)- hereinafter BewG apply. 

Please note: Germany has tax treaties with the USA (Germany-U.S. Estate and Gift Tax Treaty), Greece, France, Sweden, Denmark, and Switzerland, that may preclude Germany from imposing inheritance tax. Whether Germany is precluded from imposing inheritance tax under such a Treaty is out of the scope of this article. For more information on the Germany-U.S. Estate and Gift Tax Treaty, please check our other publications on German-American Inheritance Law. 

General Concept of the German Inheritance Tax

Germany does not levy estate tax (Nachlasssteuer) but inheritance tax (Erbschaftsteuer). In contrast to estate tax, inheritance tax is imposed on the taxable acquisition (Erwerb) of the beneficiary and not the estate (Nachlass). See § 1 ErbStG. Accordingly, the beneficiary must pay the German inheritance taxes on all transfers received. See § 20 ErbStG.

Germany has a unified inheritance and gift tax system: Gratuitous transfers upon death or inter vivos, in particular a gift (Schenkung) between the same persons within 10 years, are aggregated and the tax is (re-) calculated based on the aggregated taxable acquisition. See § 14 ErbStG. 

Example: A makes a lifetime gift to his only child in 2010 and dies in 2019, leaving his estate to his child; the value of both transfers is aggregated in order to calculate the tax.

This can be used to minimize the applicable tax.

Example: If A had made the gift in 1999, he could have used the tax-free exemption twice, and the (progressive) tax rate may be lower. 

Taxable Transfers of Property on Death

German inheritance tax is imposed on any transfer of property at death. For example, tax is imposed on the following transfers:

• An inheritance (Erbschaft), a legacy (Vermächtnis), and/or a forced share (Pflichtteil);
• Gift mortis causa (Schenkung auf den Todesfall); 
• the death benefit of a  life insurance (Lebensversicherung) or annuity (Rentenversicherung), or other contractual death benefit; 
• Transfer on death to a foundation (Stiftung) or opaque trust (intransparenter Trust) - see special article on taxation of trust under German tax law -; and
• Any compensation for a disclaimer of inheritance (Ausschlagung). 

German and Foreign Pension Plans

Payments from German (or foreign) government pension schemes are excluded from taxation in Germany. Company-based pension plans or tax-qualified annuities are generally subject to taxation under the German Inheritance Tax Act. However, the German Federal Fiscal Court (Bundesfinanzhof) held that certain payments from tax-qualified company pension plans or annuities to certain privileged persons are exempt from German inheritance tax. Payments from foreign pension plans are tax-exempt if the foreign pension plan resembles a German tax-qualified pension plan or annuity. Nevertheless, it should be noted that German pension plans are somewhat unique, and foreign plans often do not resemble German plans. 

Community Property and Other Issues of the Matrimonial Property Regime

In many jurisdictions, the spouses acquire joint property during the marriage. In such cases, only the share of the first dying spouse is taxable under the German Inheritance Tax and Gift Tax Act.

Under the German laws governing matrimonial property (if applicable), there is no spousal community property unless the spouses agree to such an arrangement in a contractual agreement (antenuptial agreement, postnuptial agreement). However, in default of such an agreement, the surviving spouse will receive equalization of accrued gains (Zugewinnausgleich) when the marriage ends, e.g., because one spouse dies. The value of the equalization claim is tax-exempt. See § 5 ErbStG  

Taxation of Residents

Pursuant to § 2(1) ErbStG (unlimited tax liability), Germany taxes all worldwide transfers, if either the deceased at the time of his death or the beneficiary at the time of the acquisition is a German tax resident (Inländer).

An individual is a German (deemed) tax resident if

• he/she has either a residence (Wohnsitz) or a habitual abode (gewöhnlicher Aufenthalt) in Germany. 
• he/she is a German citizen who has not lived abroad for a continuous time of 5 years without having a residence in Germany - extended unlimited inheritance tax liability (erweiterte unbeschränkte Erbschaftsteuerpflicht) -; 
• he/she is a German citizen employed by a German authority abroad (e.g., German Embassy).

A corporation (Kapitalgesellschaft), a partnership (Personengesellschaft), an association (Verein), and/or a foreign pool of assets (Vermögensmasse ausländischen Rechts) is a German tax resident if its registered office (Sitz) or place of effective management (Ort der Geschäftsleitung) is situated in Germany. 

Please note: This does not necessarily mean that Germany imposes German inheritance tax, as a Treaty may preclude Germany from imposing inheritance tax. Germany currently has Treaties in the area of inheritance and estate taxes with the USA (Germany-U.S. Estate and Gift Tax Treaty), Greece, France, Sweden, Denmark, and Switzerland. 

Non-Resident Taxation 

If neither the deceased nor the beneficiary is a German (deemed) tax resident, the beneficiary will generally only be subject to German Inheritance Tax based on the German domestic property (Inlandsvermögen); this is generally referred to as limited tax liability (beschränkte Steuerpflicht) or situs taxation.

Important: While most (private) financial investments (e.g., cash in account, exchange-traded funds, stocks, bonds) in Germany are not subject to taxation because of situs, most financial institutions will only release such assets after they have received a tax clearance certificate (steuerliche Unbedenklichkeitsbescheinigung), also referred to as a German transfer certificate. 

Tax Exemptions and Reliefs of the German Inheritance Tax

The German Inheritance and Gift Tax Act provides for significant exemptions (sachliche Steuerbefreiungen) and reliefs:

Exemption for the Family Home

The family home (Familienheim) of the surviving spouse or registered same-sex partner (eingetragener Lebenspartner) is tax exempt if

• it is located in the European Union (EU) or European Economic Area (EEA), and
• the surviving spouse personally uses it as their principal home for another 10 years after death. See § 13(1) Nr. 4 b ErbStG. 

The tax exemption is canceled with retroactive effect if the spouse no longer uses the family home for residential purposes within ten years of the acquisition, unless he is prevented from using it for his own residential purposes for compelling reasons. See § 13(1) no. 4c sentence 5 ErbStG. There are compelling reasons if the surviving spouse cannot or cannot reasonably be expected to use the property for his or her own residential purposes for objective reasons. Health impairments can constitute compelling reasons if they make it impossible for the acquirer to maintain an independent household in the acquired family home (BFH, judgment of 1.12.2021 - II R 18/20). 

Estate planning consideration: Many surviving spouses wish to downsize after the death of their spouse or want to move closer to their family. To benefit from the tax exemption for the family home, they should consider transferring the family home during the lifetime of both spouses to the spouse who presumably survives the other, as, in this case, there is no requirement to live in it for 10 years after the gift. See the article on the German gift tax. 

If children and/or stepchildren (or children of deceased children or stepchildren) inherit the family home, it is tax-exempt if the beneficiary uses the family home as such for his or her own purposes for a period of 10 years after the death of the deceased. If the living space exceeds 200 square meters, the portion exceeding 200 square meters is liable to tax.

Exemptions and Reliefs for Agricultural, Forestry, or Business Assets

Germany has enacted extensive tax exemptions and reliefs for agricultural, forestry, or business assets, interests in a partnership or substantial shareholdings based in Germany, in the EU, or in the EEA.

Other Tax Exemptions and Tax Relief

Other tax exemptions and tax relief associated with the German Inheritance and Gift Tax Act include:

• Household and personal effects are tax exempt up to EUR 41,000 if the beneficiary is taxed under tax class I (otherwise up to EUR 12,000);
• Movables (e.g., personal jewelry) are tax exempt up to EUR 12,000;
• Real estate (including parts of real estate) is tax-exempt if there is a public interest in preservation, and it is open to the public.
• Art collections, collections of scientific interest, and other cultural assets can, under certain conditions, be exempted from 60%, 85% or even 100% of the German inheritance tax;
• Acquisition by a church (Kirche) and a Jewish cultural community in Germany;
• Acquisition by a corporation, association or pool of assets pursuing a ecclesiastical purposes (kirchlichen Zwecke), public-benefit purposes (gemeinnützige Zwecke) or a benevolant purposes (mildtätige Zwecke),
• Acquisitions by a foreign corporation, association, or pool of assets pursuing ecclesiastical purposes (kirchliche Zwecke), public-benefit purposes (mildtätigte Zwecke), or benevolent purposes (mildtätige Zwecke), whose German source income would be tax privileged in Germany; if the tax-privileged purposes are only realized abroad, the tax exemption is only granted if individuals residing in Germany are supported or the activities contribute to the reputation of the Federal Republic of Germany; and
• Acquisition by German political parties. 

Deductible Estate Debts and Costs of Administration

The following obligations imposed on the taxpayer (beneficiary) are deductible: 

• Debts of the decedent (e.g., nursing home/hospice costs, guardianship expenses);
• The value of a legacy (Vermächtnis), testamentary burden (Auflage), or forced share (Pflichtteil) to be paid by the taxpayer;
• The costs of the burial, an appropriate grave headstone, the usual grave maintenance with its capital value for an undetermined length of time, and
• The costs arising for the recipient as a direct result of handling and distributing the estate.

Generally, such costs must be proven by filing supporting evidence (e.g., invoices) together with the inheritance tax return. However, a standard deduction of EUR 15,000 is allowable without any supporting evidence. See § 13(1) Nr. 1 b) ErbStG.

Maintenance costs (e.g., electricity) and the costs for selling estate assets (e.g., real estate agent`s commission) are generally not deductible. However, if the testator instructed the executor in his Will to sell all estate assets and distribute cash to the beneficiaries, all costs of selling the assets can be deducted.

In cross-border estate matters, it is also arguable that a beneficiary who lives abroad and therefore cannot use the inherited property unless it is liquidated can deduct the costs of selling such assets. 

Valuation

Valuation Date

The valuation is based on the date on which the tax arose. See § 11 ErbStG. The tax on an inheritance arises with the death of the decedent (and not the time when the personal representative makes a distribution to the beneficiary). See § 10 ErbStG. Consequently, stock price losses after death are not to be considered. 

Valuation Methods

Pursuant to § 12 ErbStG, the valuation is determined under the German law governing the valuation of assets (Bewertungsgesetz).

Securities, for example, are valued at the lowest price on a German stock exchange. See § 11 BewG.

The valuation of domestic real estate is based on the fair market value (§§ 162 I 1, 177 BewG). The taxpayer does not determine the value himself but must complete special tax forms, allowing the local fiscal authority where the property is located to determine the fair market value in special tax proceedings. Depending on the type of real estate, the local fiscal authority assesses the value of domestic real estate based on

• a comparative market research (in particular for a one- or two-family home),
• the value of the land/construction or
• the net income (in particular for rental property) or
• a combination thereof.

If the property was sold within 1 year before the taxable event (e.g., death), the purchase price is generally considered the fair market value. An appraisal is generally not required. If the taxpayer considers the value assessed by the local fiscal authority to be above the fair market value, he may prove a lower value by way of an appraisal.

Foreign real estate is also valued at the fair market value. Unlike the valuation of domestic property, the value of foreign real estate is not determined in special tax proceedings. Instead, the taxpayer must state the value and provide the inheritance tax office with information based on the stated value.  

Personal Tax-free Exemptions

Certain persons can deduct a certain amount from their taxable acquisition, which is referred to hereinafter as the tax-free exemption (Freibetrag) or inheritance tax threshold. There are three types of personal tax-free exemptions:

Personal Tax-free Exemption

The personal tax-free exemption depends on the familial relationship between the deceased and beneficiary. In case of unlimited tax liability, the following tax-free exemption applies (see § 15 ErbStG and § 16 ErbStG):

Personal Tax-free Exemption in Case of Non-Resident Taxation

Before June 2017, the tax-free exemption under § 16(2) ErbStG was limited to EUR 2,000 in case of non-resident taxation. The European Court of Justice has since ruled in the cases Vera Mattner v. Finanzamt Velbert (Case C‑510/08) and Yvon Welte v. Finanzamt Velbert (Case C‑181/12)  that this reduced tax-free allowance violates European Law and that the full exemption amount under § 16(1) ErbStG must be granted. In response to the aforementioned rulings, § 16(2) ErbStG was amended. The newly enacted law became applicable on June 25, 2017, and stipulates that the personal tax-free allowance under § 16(1) ErbStG shall also be granted in cases of situs taxation, but be subject to a reduction which is calculated as follows: 

All estate assets and gifts within 10 years are not subject to German situs taxation

Divided by: All estate assets and gifts made in the last 10 years before the taxable event (death).  

Example: The decedent’s fiscal domicile at the time of death was Los Angeles, CA, USA. At the time of her death, the decedent owned an apartment in Munich with a value of EUR 400,000. The value of her worldwide estate is determined to be € 1 million. The decedent gives everything to her son. Germany taxes only the value of the apartment. However, the tax-free amount of € 400,000 under § 16(1) ErbStG is not granted in full. Instead, it is reduced by EUR 240,000 under § 16(2) ErbStG: Tax-free exemption minus EUR 600,000 (estate assets not subject to German situs taxation) ./. € 1 million (all transfers in a 10-year period) × €400,000 (tax-free allowance) = €240,000. Thus, the tax-free exemption under § 16(2) ErbStG is limited to €160.000. 

Special Spousal Tax-free Exemption

An additional tax-free exemption of up to € 256,000 is granted under § 17 ErbStG (Vorsorgefreibetrag) to the surviving spouse. However, the capitalized value of an inheritance tax-free widow's pension will be deducted from the available exemption amount. 

Special Tax-free Exemption for Children of the Deceased

An additional tax-free exemption of up to € 52,000 is granted to children of the deceased up to the age of 27, provided that such children are not entitled to tax-free pension payments upon the death of their parent (§ 17 ErbStG). If they are entitled to such benefits, the exemption will be reduced by the net present value of such pension benefits.

Tax-free Exemption for the Equalization of Surplus Claim

The value of the claim for equalization of accrued gains (Zugewinnausgleich) is tax-exempt. See § 5 ErbStG.  

"Per Transfer"

The tax-free exemption under § 16 ErbStG and § 17 ErbStG is granted for any “transfer” from the same person. Thus, it is favorable to make dispositions to more than one person. 

Example: A has a net worth of € 1,3 Mio. If he leaves everything to his wife, his wife must pay German inheritance tax on an amount of € 800,000 at a rate of 19 %. However, if he were to give each of his 2 children EUR 400,000 and the remainder, € 500,000 to his wife, no beneficiary would pay any German inheritance tax. 

Inheritance Tax Classes and Rates

The German inheritance tax rates depend on the tax class and the value of the taxable acquisition of the beneficiary.  

Inheritance Tax Classes

The tax class depends on the familial relationship between the deceased and the beneficiary:

Inheritance Tax Rates

The German inheritance tax rates (2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016, 2017, 2018, 2019, 2020, 2021) in each tax class can be taken from the following table:

If the taxable acquisition exceeds the respective value limit, the higher tax rate is to be applied to the total taxable acquisition. 

Example: A, nephew of the deceased, inherits € 500,000. The first € 20,000 is tax-free. The excess is taxed at a rate of 25 % (and not only the amount of the taxable acquisition which exceeds €300,000). 

To avoid unfair taxation in cases where the value limit is exceeded, a “compensation for hardship” under § 19 (3) ErbStG may be available. 

Deduction of Foreign Estate Taxes and Inheritance Taxes

Upon application, a foreign tax will be offset against the German inheritance tax if:

• Either the deceased or the beneficiary was a resident of Germany in the meaning of § 2 ErbStG,
• Estate assets are located outside of Germany, which are taxable in Germany and abroad.
• The foreign tax is comparable to the German inheritance tax.
• The foreign tax was assessed and paid.
• The foreign tax accrued within the last 5 years before the German tax. See § 21 ErbStG. 

Estate taxes (e.g., UK inheritance tax or South African estate duty) are generally comparable to the German inheritance taxes and, thus, qualify for unilateral relief (Anrechnung) in Germany.

The Canadian capital gains tax on deemed disposition on death and similar taxes (e.g., Thai Capital Gains tax) are not comparable to the German inheritance tax and therefore cannot be offset against the German inheritance tax. However, such taxes can be deducted as estate debt or as expenses of administration of the estate.

If unlimited tax liability (unbeschränkte Steuerpflicht) in Germany is derivative of the fact that the deceased had a residence in Germany, the foreign tax on personal property (e.g., a yacht, classic cars, artwork) and nontangible property (e.g., balance of foreign bank account, shares in corporation) cannot be offset against the German Inheritance Tax. The  European Court of Justice has ruled that this rule does not violate European law.

Personal Tax Liability under the German Inheritance and Gift Tax Act

The beneficiary must pay the German inheritance tax. See § 20 ErbStG. However, the executor (Testamentsvollstrecker) is obliged to make sure that the inheritance tax is paid.  Failure to comply with this obligation may result in personal liability for the executor. The executor has the right to withhold the funds necessary to pay the German inheritance tax and pay the tax directly out of the estate without the consent of the beneficiaries.

German Inheritance Tax Return and Duty of Disclosure

There is no obligation to file a German inheritance tax return (Erbschaftsteuererklärung) unless an inheritance tax office demands it. However, according to § 30 ErbStG, the beneficiaries are obliged to report the transfer to the local inheritance tax office within 3 months after gaining knowledge of the taxable acquisition (Erwerb). For further information on the reporting obligation, please see our article German Inheritance Tax: Duty to report an Inheritance from Abroad. 

Based on the information received from the beneficiaries, the financial institutions and other sources (e.g. German notaries, German probate courts or German Consuls), the German tax authorities determine if German inheritance tax may be due and, if this is the case, ask to file an inheritance tax return from any person involved in the transfer. The filing period is generally one month. Upon application, an extension of the filing period is granted in most cases. For further information on the German inheritance tax return and the tax assessment, please check our article German inheritance tax return: preparation, filing, and tax assessment. 

Tax Clearance / Transfer Certificate

If all or one of the beneficiaries reside outside of Germany, German banks and other financial institutions are liable for the payment of inheritance tax by such beneficiaries. Thus, they make no payments to beneficiaries residing outside of Germany, unless a transfer certificate (Unbedenklichkeitsbescheinigung), also referred to as a tax clearance certificate (Unbedenklichkeitsbescheinigung), is provided. Such a tax clearance certificate will be issued by the tax authority once it has determined that no tax is due or the assessed tax has been fully paid. 

Estate Income Tax Return

Generally, there is no German Estate Income Tax Return, as, under German law, an estate is not a separate legal entity for tax purposes. However, if there is a community of co-heirs (Erbengemeinschaft), income from assets administered by the community-of-co-heirs must be assessed each year (Erklärung zur gesonderten und einheitlichen Feststellung der Grundlagen für die Einkommensbesteuerung, or abbreviated: Feststellungserklärungen). If a foreign estate qualifies as a foreign family pool of assets (Vermögensmasse ausländischen Rechts), the beneficiary may have to file a special tax return for the income of such foreign family pool of assets.