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 (Testament) or contract of inheritance (Erbvertrag);
- 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.
Marriage, Divorce and Pending Divorce Proceedings
The spouse only can be an intestate heir if the marriage is - from a German perspective - valid. Most foreign marriages are recognized as valid in Germany, however, common law marriages may not be recognized.
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.
Share of the surviving Spouse
The surviving spouse is entitled to
- one quarter of the estate together with relatives of the first degree (= issue of the deceased and their issue), and
- to one half of the estate together with relatives of the second degree (= the parents of the deceased and their issue, e.g. the brother or sister, nieces and nephews of the deceased) or together with grandparents.
If there are both grandparents and descendants of grandparents living, the spouse also receives the share of the other half that under § 1926 BGB would pass to the descendants.
If there are relatives neither of the first nor of the second degree nor grandparents living, the surviving spouse receives the whole inheritance. 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).
Impact of Matrimonial Property Regime of the Spouses
The share of the surviving spouse is modified depending on the German statutory matrimonial property regime (Güterstand) the deceased and his spouse lived under at the time of the deceased`s death. There are 3 matrimonial property regimes under German law:
- Property regime of community of accrued gains (Zugewinngemeinschaft)
- Property regime of separation of property (Gütertrennung) and
- Property regime of community of property (Gütergemeinschaft).
Please note: If the spouses were married under foreign law, however, German law applies with regards to intestacy, difficult questions may arise. For marriages concluded after 01 January 2019, the applicable law is determined under the Council Regulation (EU) 2016/1103.
Intestate Share in Case of Property Regime of Community of Accrued Gains
If the spouses do not agree otherwise in a marriage contract (prenuptial agreement, postnuptial agreement), 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 community 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:
- Heirs on intestacy of the first degree: issue of the deceased and their issue, e.g. the children, the grandchildren and great-grandchildren of the deceased. See § 1924 (1) BGB;
- Heirs on intestacy of the second degree: the parents of the deceased and their issue, e.g. the brother or sister, nieces and nephews of the deceased. See § 1925 (1) BGB;
- Heirs on intestacy of the third degree: the grandparents of the deceased and their issue, e.g. uncles, aunts and cousins of the deceased. See § 1926 (1) BGB
- Heirs on intestacy of the fourth degree: Heirs on intestacy of the fourth degree are the great-grandparents of the deceased and their descendants .See § 1928 BGB.
- More distant degrees: Heirs on intestacy of the fifth degree and of the more distant degrees are the more distant forebears of the deceased and their descendants. 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:
Heirs on intestacy of the first degree
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.
