German inheritance law – Claims of the disinherited spouse and offspring

In principle, under German inheritance law the testator is free to appoint any person as his heir (beneficiary) or to disinherit his (intestate) heirs, e.g. his offspring or spouse. However, under German inheritance law (Opens external link in new windowcheck if German inheritance law applies) some privileged persons may claim the “Pflichteil[1].

 

Nature of the Pflichtteil

The person entitled to a Pflichtteil  – the Pflichtteilsberechtigte - does not become "Erbe" (heir). Accordingly, he has no claim to the estate and does not inherit in the same manner as an heir, e.g. he is not member of the Opens internal link in current windowcommunity of co - heirs and he does not become owner of estate assets. Additionally, the Pflichteilsberechtigte is not entitled to specific estate assets as a "Vermächtnisnehmer" (legatee / beneficiary of a specific bequest) would be, but instead may only claim certain funds from the heirs.

 

Who is entitled to the Pflichtteil?

According 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

  

Further more the (same sex) life partner is entitled to receive a Pflichtteil (see § 10 VI LPartG). The siblings are not entitled to a Pflichtteil.

  

Descendants and parents of the deceased are not entitled to receive a Pflichtteil 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 parents of the deceased from succession according to §§ 19241, 1925 1,1930 BGB, the parents of the deceased are not entitled to a Pflichtteil if the testator appoints his children as sole heirs.

  

If an heir renounces the inheritance he will only have a claim for the Pflichtteil under §§ 2306 I 2, 2303 II 2, 1371 III BGB.

 

When is the Pflichtteil payable?

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

 

What happens if a Pflichtteilsberechtiger is not entirely desinherited?

If the "Pflichtteilsberechtigte" is - according to the will - only entitled to receive a share lower than the Pflichtteil, he has a supplementary claim under § 2305 BGB (Zusatzpfichtteil) under §2305 BGB. Such an heir cannot reject the inheritance and claim the full Pflichtteil instead.

 

How is the Pflichtteil determined?

The Pflichtteil amounts to half of the value of the intestate share, §2303 I 2 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 at the time of death is crucial (see § 2311 BGB).

 

How do the persons entitled to the Pflichtteil get the necessary information for determination of the Pflichtteil?

The persons entitled to a Pflichtteil can claim from the heir an inventory of the estate and an appraisal of the value of the assets of the estate, §2314 I 1 BGB.

 

Who is liable to the Pflichtteil?

The heir is the debtor of the Pflichtteil, §2303 I l BGB. Several heirs are liable as joint debtors, §2058 ff BGB. Persuant to § 2019 BGB a co-heir can after the distribution of the estate refuse payment, if otherwise his own Pflichtteil would be affected.

 

What happens if the deceased gave away property during his lifetime?

Even if the testator gave away property during his lifetime the Pflichtteil according to § 2303 I 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 under § 2325 BGB (Pflichtteilsergänzungsanspruch), 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 Pflichtteilsergänzungsanspruch?

In the first line the heir is liable for an additional claim under § 2325 BGB. If the heir himself is entitled to a Pflichtteil, he can refuse an additional payment, insofar as this payment would affect his own Pflichtteil, §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, §2329 BGB. The sole heir can also claim an additional payment to his inheritance (see §2329 1 2 BGB).

 

Do payments to the entitled person decrease the Pflichtteil?

If the testator made payments to the person entitled to the Pflichtteil during his lifetime in order to pay hin off, the Pflichtteil may – under certain conditons -  be decreased under §2315 BGB.

 

Protection from charges or limitations

If the heir was charged with a “Vermächtnis” (specific bequest / claim to a certain asset of the estate) or a testamentay burden with the result that the share left to him is equal to or less than the Pflichtteil, or if his rights are limited by a “Testamentsvollstreckung” (similar to the limitation of the beneficiaries of an “estate trust”) or §§ 2100 ff. (fiduciary inheritance) the charge or limitation is invalid (see §2306 I 1 BGB). If the share of the estate left to him is bigger than the Pflichtteil, he may renounce the inheritance the inheritance an claim the Pflichtteil.

 

Rights of the legatee

If a legatee would receive more under § 2303 BGB, he may renounce the legacy and claim the full Pflichtteil, § 2307 I 1 BGB. If he does not renounce, the legacy is deducted from his Pflichtteil, §2307 I 2 BGB.

 

Rights of the spouse

A spouse who lived under the statutory matrimonial property regime of the community of surplus (“Zugewinngemeinschaft”) may, claim the full Pflichtteil if he or she renounces the inheritance. In addition the spouse may claim equalization of the surplus, which in this case is calculated according to the provisions of German familiy law and may be higher than the lump sum for the regular equalization of the surplus under §§1931 III, 1371 I BGB). Therefore, if the surplus was very high, it may be advisable for the spouse to renounce the inheritance.

 

Loss of the right to Inherit

Those who are unworthy of inheriting (e.g. because a person has concealed, altered or destroyed in bad faith the will of the deceased or because such person has hindered the testator in the writing, amendment or revocation of his will) or who have waived their right to inherit have no right to a Pflichtteil, §§2345 II, 2346 I 2 BGB. The waiver of the right to inherit can be confined to the Pflichtteil, §2346 II BGB.

 

Right to deprive the Pflichtteil

Persuant to § 2333 BGB the testator may deprive a descendent from the compulsory share if

1)      he made an attempt on the life of the deceased, his spouse or another descendant of the deceased

2)      he is guilty of any intentional physical cruelty towards the deceased or the spouse of the deceased if the descendant descends from the spouse.

3)      He is guilty of any crime or serious offence committed intentionally against the deceased

4)      He malicously violates his duties to provide maintanaince for the deceased.

5)      He leads a dsireputable and immoral life

  

According to § 2334 the testator may in the cases of 1), 2), 3) and 4) also deprive his parents from the Pflichtteil.

 

Persuant to § 2335 BGB the testator may deprive his or her spouse from the Pflichtteil if

1)      The spouse made an attempt on the life of the deceased, his spouse or another descendant of the deceased

2)      The spouse is guilty of any intentional physical cruelty towards the deceased or the spouse of the deceased if the descendant descends from the spouse.

3)      The spouse is guilty of any crime or serious offence committed intentionally against the deceased

4)      He malicously violates his duties to provide maintanaince for the deceased.

 

Limitation of the Pflichtteil

If the offspring of the testator is wastefull or heavily indebted the testator may limit the Pflichtteil by appointing his offspring fiduciary heir for his offspring (Vorerbe) or by directing a testamentsvollstrecker (estate trustee). In this case the Pflichteilsberechtigte does not have full controll over his part of the estate.

 

Time limitation

The claim for the Pflichtteil is time - barred three years after the discovery of the disposition which infringes their rights by those entitled to inherit and after 30 years at the latest, §2332 BGB.

  


[1] <//u><//u>The Pflichtteil differs in many ways from other legal claims that aim to protect the offspring or the spouse of the deceased in other jurisdictions. Thus, as a translation as statutory forced share or statutory compulsory portion may be misleading, the author refrains from a translation of the word Pflichtteil.

 

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2009 © Jan-Hendrik Frank (Rechtsanwalt und Fachanwalt für Erbrecht)