Testators can disinherit children and spouses. However, the right to a compulsory portion remains. How high it turns out and when you don’t get it after all.
The most important things at a glance
German inheritance law is complicated. Although they can disinherit unloved relatives, they usually do not end up completely empty-handed. Because they remain entitled to a compulsory portion.
The compulsory portion is half of the statutory portion of the inheritance. According to legal inheritance, a whole series of relatives are entitled to it: children, grandchildren, parents, spouses and life partners in a registered partnership. However, they are not equal to one another in the order of inheritance.
We will show you what that means in practice, how you can get your compulsory portion and under what circumstances you may not inherit anything despite your claim to a compulsory portion.
Who is entitled to the compulsory portion?
According to Section 2303 of the German Civil Code (BGB), close relatives are also entitled to part of the estate if the testator has disinherited them. This minimum possible participation in the assets of the deceased is intended to take into account the idea that the testator has a duty of care for his close relatives even after his death.
To be entitled to a compulsory portion:
- Children, natural or adopted
- spouse and life partner
- Parents of the deceased if he has no children
- Grandchildren or great-grandchildren if their parents and/or grandparents are no longer alive
Not entitled to a compulsory portion:
Compulsory portion in blended families
Things get complicated when parents separate and start new partnerships. Both partners may bring children into the new relationship and also have offspring together. The problem is: In inheritance law, a distinction is made between the legal and the social family.
This means: In the case of inheritance, stepchildren are not treated on an equal footing with biological or adopted children. So if a partner in a marriage-like partnership dies, their biological children, but not the stepchildren, are entitled to the compulsory portion.
This can be remedied, for example, by a will or an inheritance contract, in which non-biological or adopted children are also taken into account.
When and how do I get the compulsory portion?
The compulsory portion is generally due when the inheritance occurs. In practice, however, this does not always run smoothly. It becomes difficult, for example, if the inheritance does not consist of cash but material assets.
If the person entitled to a compulsory portion insists that their share be paid out, this could mean that the material assets – for example a house – have to be sold. However, the court weighs carefully in these cases.
If other heirs live in the property, it can be an unreasonable hardship to force the sale. One solution would be to defer the payment of the compulsory portion or to pay it in installments.
The situation is different for valuables such as antiques or jewellery. In case of doubt, you must sell these if you cannot pay the compulsory portion from your private assets.
Important: Those entitled to a compulsory portion must claim their share from the heirs. The probate court only informs the appointed heirs. Compulsory portion claims are not noted on the certificate of inheritance.
In order to get your compulsory portion, you should first ask the heirs for information about the amount of the inherited assets. This can be done using the list of estates, which the heirs or notary create either independently or at your request. The register lists all assets. As the beneficiary, you may be present while it is being created.
You can now calculate the amount of your compulsory portion and then claim it from the heir or the community of heirs. If the heirs refuse to pay the compulsory portion, your only option is to sue.
How is the amount of the compulsory portion calculated?
The compulsory portion is always half of the statutory portion of the inheritance. What sounds simple often leads to arguments in court.
In order to calculate the compulsory portion, all relatives must be taken into account – including those who are excluded from the statutory succession. In addition, the legal heirs must be determined. On this basis, you can first determine the compulsory portion quota.