German succession law - intestate succession

Under German succession (Opens internal link in current windowcheck if German inheritance law applies) law intestate succession is determined by § 1931 ff. BGB.

 

Claims of the surviving Spouse

If the deceased's spouse is still alive at the time of the deceased´s death, the spouse's share of the estate is to be determined first. According to § 1931 BGB the surviving spouse of the deceased is entitled to receive:

 

  • 25% of the estate if there are any surviving children (or their issue) of the deceased
  • 50% 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
  • 100% of the estate if the deceased is not survived by any of the aforementioned relatives

 

The share of the surviving spouse is modified depending on the matrimonial property regime the deceased and his spouse lived under at the time of the deceased`s death.

 

If the spouses were living under the Opens internal link in current windowstatutory property regime of community of surplus ("Zugewinngemeinschaft") the surviving spouse's intestate share is increased by one fourth as a lump sum for the regular equalization of the surplus (see §§1931 III, 1371 I BGB).

 

If the spouses were living under the contractual property regime of separation of property ("Gütertrennung"), §1931 IV BGB modifies the surviving spouse's share as follows: The surviving spouse inherits together with one or two children or their issue (excluding other relatives) in equal shares. If there is only one child, the child and the spouse thus each inherit one half of the estate. If there are two children, the spouse inherits 1/3. If there are more than two children, however, the spouse's share is one fourth.

 

If the spouses were living under the contractual regime of community of property ("Gütergemeinschaft"), the provisions of § 1931 I and II 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, § 1416 BGB) falls to his estate and is inherited according to the provisions of the law of succession (§ 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 (§ 1483 I 3 BGB).

 

The spouse does not inherit if, at the time of the deceased`s death, the marriage has been dissolved (e.g. by divorce) by a final court judgement. However, according to § 1933 BGB the spouse also is not entitled to receive a share of the estate if at the time of the deceased's death, the conditions for the dissuolution were fulfilled and the deceased had already filed the respective petition.

 

Claims of the next kin

After the share of the spouse has been deduced from the estate, the other beneficiarys are to be determined. As in most jurisdictions the relatives of the deceased, especially his issue, are the first to claim inheritance rights. 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 beneficiaries of a foregoing class excludes any potential beneficiary of a higher class (see § 1930 BGB):

 

  • Class one (see § 19241 BGB): issue of the deceased and their issue, e.g. the children, the grandchildren and great-grandchildren of the deceased.
  • Class two (see § 1925 I 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 I 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 children born after 1976 have the same legal status as other children.

 

Inheritance rights in one order

Within the same class the inheritance right is determined as follows: First class: According to § 1924 IV BGB the issue of the deceased inherits in equal shares. Living children of the deceased exclude the grandchildren of the deceased from any inheritance rights. They are representated by their father / mother ("principle of represantation"). Where one of the deceased's children has died before the deceased, the deceased child's share passes over to his children (§ 1924 III BGB). If the issue of de deceased had more than one child, each of his children inherits an equal share (§ 1924 IV 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 (§ 1925 II BGB). If one parent has died before the deceased, his share of the estate passes to his issue (see § 1925 III l BGB). If the pre-deceased parent does not leave any descendants his share falls to the surviving parent (see § 1925 III 2 BGB). If both parents of the deceased have died before him, each of the parents' shares passes to their issue.

 

Third class: If all grandparents are still living, they inherit in equal shares excluding the other members of their class (§ 1926 II BGB). When at the time of the deceased death one of his grandparent had pre-deceased, 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 III, IV BGB).

 

Fourth or higher classes: succession is determined by the degree of relationship. The degree of relationship is determined by the number of intervening births (§ 1589 s. l BGB). If there are several relatives of the same degree, they inherit equal shares (§§ 1928 III, 1929 II BGB).

 

For more information in English about German inheritance law click Opens internal link in current windowhere.  

 

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