Inheritance law

from Wikipedia, the free encyclopedia

The right of inheritance is the inheritance of an agricultural property to a single heir so that it remains closed. It is a special succession in the yard. The farm is - separately from other assets, which are inherited according to general rules - bequeathed to the heirs according to the special rules . In the feudal tradition, the primogeniture corresponds to the inheritance law. The opposite of this is the real division .

The farms that are subject to inheritance law are called hereditary farms, in Tyrol ( state of Tyrol and the autonomous province of Bozen-Südtirol ) closed farms .

history

The inheritance right is a transfer of feudal clan structures to the peasant class . This only takes place in Central Europe from the late High Middle Ages. Before that, real estate was in principle either regulated within the framework of commons or lordly and was handed over on loan within the framework of the feudal system . A long lease developed in parallel . From the emergence of a free peasantry , which only made family succession possible even in the fourth estate, the real division led to a progressive fragmentation of the properties (this includes the terms of basic size such as half yard , quarter yard , up to sixteenth yards), and subsequently also to an increasing impoverishment of the rural population because their increasingly smaller farms could no longer feed them. Therefore, in many areas, the inheritance law institutes of Germanic law were passed (or back), which prevented the division.

In areas with inheritance rights, the pressure to emigrate from the non-inheriting parties who lose everything is greater than in the case of real division, where each heir receives his share of the land. All other heirs excluded by the heir were settled far below their real value. Alternatives were offered to them: Acquisition of their own farm through purchase or marriage, work as a servant or maid and thus sinking into the class of the landless village population, employment in urban or rural handicrafts, seafaring, emigration or emigration to new settlement areas (such as Internal colonization, i.e. repopulation measures after epidemics or wars, or to the New World). Statistical evaluations, for example in Baden-Württemberg, however, showed that no migration mechanism could be derived from them. The emigration was more dependent on individual mobility gains than on inheritance.

Contrary to the popular belief that the eldest son always has a certain prerogative to his parents' property, there were also very different regulations. In the Hochstift-Augsburg office of Pfronten, for example, the youngest son always received the court before 1800. If there was no male heir, the eldest daughter would be preferred. This regulation is also attested for the former Montfortic county of Rothenfels ( Immenstadt ) "according to ancient land usage" in 1840 . The ownership regulations for the county of Ravensberg of November 8, 1669 also confirm the inheritance law as a traditional law of youngsters. If a son cannot inherit, the youngest daughter takes the place; Children of the first marriage take precedence over those of other marriages in succession. The same has been handed down from the Tyrolean Brenner region , for example ; the custom disappeared at the end of the 18th century. The law of youngsters also applied in the Wesermarsch and Delmenhorster Geest .

Settlement geography

The settlement geography considers the differences between areas of inheritance law and those of real division , which can be seen in the field map .

National

Germany

The arrangement in the Third Reich

For Germany, the BGB does not provide for any inheritance rights, but in some federal states there are still inheritance rights under state law (cf. Art. 64 EGBGB ). It is therefore always necessary to check whether the farm is located in an inheritance country and whether an inheritance law or BGB estate inheritance law applies.

Inheritance rights

  • In Bavaria, Berlin, Brandenburg, Mecklenburg-Western Pomerania, Saarland, Saxony, Saxony-Anhalt and Thuringia there is no right of inheritance. For Brandenburg , however, there is a draft court order.
  • In the states of Hamburg , Lower Saxony , North Rhine-Westphalia and Schleswig-Holstein , the court regulations of 1947 exist as partial federal law .
  • There are special state inheritance rights in Bremen (Bremisches Höfegesetz of 1899), Rhineland-Palatinate (Hofordnung Rheinland-Pfalz from 1953), Hesse (Hessian Landgüterordnung from 1947) and the former South Baden (Baden Hofgütergesetz, 1898). In the rest of Baden-Württemberg, the Württemberg Inheritance Act of 1930 applied; since January 1, 2001, this is only applicable if the testator was born before January 1, 1930.

It should be noted that not all inheritance rights have a special succession. The Badischer Hofgütergesetz (Badische Hofgütergesetz, § 10) and the Hessische Landgüterordnung (§ 11) only provide for a legacy-like right of the heir to reclaim the farm from the inheritance. While in the case of other inheritance rights, the farm is automatically and automatically transferred to the heir by way of special succession (self- acquisition ), according to the Baden and Hessian inheritance law, the farm must be transferred from the community of heirs to the heir.

It is important that the validity of the inheritance law always requires a special qualification of the court as an inheritance court, which is usually brought about by entry in the so-called court role or entry as an estate in the land register. If this is missing, the farm is inherited according to general BGB inheritance law. Inheritance rights are not forced inheritance rights. The testator can therefore determine a different succession than the inheritance sequence by will.

BGB estate inheritance law

If no inheritance law applies to the farm, it will be inherited according to normal inheritance law. The special provisions of the BGB land estate inheritance law ( § 2049 and § 2312 BGB ) can apply. These can have the effect that the farm can be taken over by a transferee designated by the testator on preferential terms or that a compulsory portion is to be paid far below the compulsory portion that is actually calculated according to the market value.

Farm allocation process

If the farm falls under normal inheritance law to a community of heirs and there is no inheritance law in the true sense of the word, there is the possibility that one of the co-heirs can have the farm assigned to him by the agricultural court. This agricultural allocation procedure is regulated in Sections 13 to 17 of the Land Movement Act. As with the inheritance laws, one of the co-heirs is designated as the farm heir and the farm is assigned to him by resolution. This resolution also determines the settlement of the heirs who have withdrawn below the market value. Ultimately, the farm allocation is also a legal heir regulation, albeit in a broader sense.

Austria

Basic data
Title: Inheritance Act
Long title: Federal law of May 21, 1958 on special regulations for peasant inheritance
Type: Federal law
Scope: Republic of Austria , except Carinthia and Tyrol
Legal matter: civil right
Reference: StF: Federal Law Gazette No. 106/1958
Last change: Federal Law Gazette I No. 38/2019
Legal text:
Please note the note on the applicable legal version !

In Austria the Anerbenrecht is federal law regulated in Anerbengesetz for Carinthia ( Carinthian Erbhöfegesetz  1990) and Tirol ( Tyrolean farms Act , 1900) made their own regulations.

History of the Austrian Inheritance Law

Basic data
Title: Carinthian Hereditary Farms Act 1990
Long title: Federal law of December 13, 1989 on the division of peasant inheritance in Carinthia
Previous title: Law on the introduction of special rules on the distribution of inheritance for medium-sized agricultural properties (hereditary estates), September 16, 1903
Type: Federal law
Scope: Carinthia
Reference: StF: Federal Law Gazette No. 658/1989
Last change: Federal Law Gazette I No. 38/2019
Legal text:
Please note the note on the applicable legal version !
Basic data
Title: Tyrolean farm law
Long title: Law of June 12, 1900, regarding the special legal relationships of closed courtyards, effective for the ducal county of Tyrol
Abbreviation: HöfeG
Type: Federal law
Scope: Tyrol
Reference: StF: LGBl. For Tyrol No. 47/1900
Last change: Federal Law Gazette I No. 38/2019
Legal text:
Please note the note on the applicable legal version !

In the Habsburg Monarchy , the General Civil Code  (ABGB) in 1812 referred to the peculiarities of ownership in the peasant area (§§ 357 ff.). With the revolution of 1848/49 the manorial rule was abolished and general civil rights were introduced ( basic relief ) , and with it the complete inheritance of the peasant property. As a result, however, in the course of the later 19th century the peasantry became increasingly indebted and the agricultural and forestry property was split up. In 1889 the Imperial Law was enacted regarding the introduction of special inheritance regulations for medium-sized agricultural properties .

Because these civil law provisions survived the end of the monarchy, they were incorporated into a federal law; only the County of Tyrol and the Duchy of Carinthia had enacted their own state laws in 1900 and 1903, respectively, but these were also incorporated into federal law. The South Tyrolean inheritance law is also derived from the Imperial Law of 1889.

On the concept of the hereditary farm

As perquisites are in accordance with § 1 para. 1 Anerbengesetz "with a farmyard provided agricultural and forestry holdings , which is owned by a natural person of a spouse or parent are and a child, and at least sufficient one adult for appropriate conservation of two people, but have considered the average yield not exceeding twenty times this amount ”, according to § 2. (1) Ktn. Erbhöfegesetz those "whose area is at least five hectares and whose average yield does not exceed six times what is required to maintain a family of five." There is no regulation in this regard in Tyrolean law; the entry in the farm section of the main register applies to the land register . The term also includes fruit and wine-growing businesses and other special forms, but purely forestry businesses are not hereditary farms.

The concept of medium size , which was introduced during the monarchy, is still valid today due to these regulations. This makes the inheritance law an express tool for protecting smallholder economic structures. In this regard, the lower limit plays a role in that hereditary farms and part-time farming are largely mutually exclusive, so the farmer's profession is also supported. Therefore, the inheritance law is maintained throughout Austria to this day.

In Tyrol, the Erbhof is specifically called - as in South Tyrol - closed farm .
In some federal states, a farm is labeled as an
hereditary farm - contrary to the legal term - if it has been in the same family for at least 200 years. The title is awarded by the state. Such courtyards are marked with an iron plaque on the entrance door.

Special succession

If the legal succession comes into play, the estate can only be inherited by one person (the heir). If the heirs cannot agree on these persons, a certain hierarchy (§ 3 Inheritance Act ) is followed. For example, offspring with agricultural and forestry training or offspring who grew up on the hereditary farm are preferred. Age decides between heirs with the same requirements (depending on local custom, the oldest or the youngest is preferred).

With the exception of the Tyrol Anerbenrecht can be made by Testament be bypassed.

Inheritance

The estate is separated from the rest of the estate and the heir is answered . Instead of the inheritance, the estate (and thus the heirs) has a claim to payment of the takeover price from the heir. The price is to be set by the probate court if the heirs do not agree on it.

The right to a compulsory portion is not affected by the division of the estate, it never relates to the entire estate, but only to the farm itself. Obligatory inheritances are settled in other ways (as monetary claims). A special feature, however, is the provision according to which the inheritance and compulsory portion claims of the heirs giving way are not to be determined according to the market value , but according to the much lower takeover price (takeover value ) . This should ensure the economic viability of the company. The inheritance enjoys a privileged position in the interest of maintaining the hereditary farm: "He is deliberately favored."

The inheritance law also recognizes postponement of the distribution of the estate if the inheritance is underage ( subsequent distribution ) . as well as pension entitlements for underage heirs.

South-Tirol

Basic data
Title: State Law of November 28, 2001, No. 17
Short title: Farm Act 2001
Abbreviation: HöfeG.
Type:
Scope: South-Tirol
Legal matter:
Issued on: November 28, 2001
Entry into force on: Supplement. No. 1 A.Bl., No. 51, December 11, 2001
Weblink:
Please note the note on the applicable legal version.

In South Tyrol , the indivisible courtyard is known as the closed courtyard , while Erbhof today is an award for courtyards that have been in a family for a very long time.

The closed farm must offer the possibility of generating an annual average yield that guarantees adequate maintenance for a farming family of at least four people. Three times such a yield must not be exceeded. The legal basis for this is the Höfegesetz  (last state law 17/2001). Closed courtyards are properties that - at the request of the owner - are declared as such by the farm commission. As a rule, it is agricultural land with the associated agricultural buildings. The closed court is also indivisible in the way of inheritance.

According to the 2010 agricultural census, there are around 20,200 farms in South Tyrol. Of these, around 13,300 farms are registered as closed farms, so far more than half.

Handover

The handover of the closed yard can take place by means of a sales contract , donation or a will .

  • Legal succession : If no farm takeover has been appointed during the owner's lifetime and the heirs cannot reach an agreement, the court takes over the farm.
  • Compensation for the heirs: The compensation for the departing heirs is in the form of money, whereby the amount of the takeover value is based on the average annual income of the farm.
  • Thoughts : This means the surviving spouse's right to adequate maintenance for life. This maintenance obligation only comes into force when the farm is transferred by dividing the estate according to the legal succession. It can also be entered as a real burden in the land register when the farm is handed over by purchase or donation in favor of the transferor and his spouse and at the expense of the farm taker (protection of the retired part ).

See also

literature

Germany:

  • Gerhard Ruby , in: Groll: Praxishandbuch Erbrechtsberatung , 4th edition, 2015, Chapter XIII Agricultural special inheritance law
  • Anne Schulze Vohren (Red.): Compensation for heirs who have given way. What the farm can take. What BGB and court rules regulate. Everything about the compensation . Landwirtschaftsverlag, Münster 2005, ISBN 3-7843-3377-X .
  • Alfons Stengele: The importance of the law of inheritance for southern Germany . Kohlhammer, Stuttgart 1894 ( digitized version ).

Tyrol and South Tyrol:

  • Martin P. Schennach: History of peasant ownership and inheritance law in Tyrol - an overview. In: Hofgeschichten der Erbhöfe awarded in 2002 and 2003 ( Tiroler Erbhöfe No. 21), Innsbruck 2003, pp. 9–30 ( pdf , tirol.gv.at).
  • Edoardo Mori, Werner Hintner: The closed courtyard. Historical development and applicable regulations. Universitá Popolare dell Alpi Dolomitiche, Bozen, May 2013 ( pdf , German, mori.bz.it).

Web links

Austria:

Italy:

  • The closed courtyard , Autonomous Province of Bolzano - South Tyrol | Agriculture Department (provincial or IT)

Hamburg:

Individual evidence

  1. Jörg-Wolfram Schindler: Modernity makes you mobile. Motives and structures of modern population mobility. In: Archive news of the Baden-Württemberg State Archives No. 40, March 2010
  2. ^ Bertold Pölcher: House justice in Pfronten . In: Rund um den Falkenstein (Mitteilungsblatt des Heimatverein Pfronten eV) Vol. 4 Issue 3 (June 2009), pp. 89f.
  3. Georg Michael von Weber: Representation of the entire provincial = and statute = rights of the Kingdom of Bavaria , 1840, 4th vol. I. part, p. 317.
  4. ^ Gerhard Pfeiffer: The age of absolutism in Westphalia. In: Heinrich Glasmeier: Image reproductions of selected documents a. Files on the history of Westphalia. Münster: Verlag der Archivbildstelle 1932.
  5. ^ Kurt Heinricher: L'istituto del maso chiuso nel diritto consuetudinario dell'Alto Adige. In: Atti del II Convegno di Arti e Tradizioni Popolari , 1936. Information from Lit. Mori, Hintner: Der Geschlossen Hof. 2013, Sez 1:10, p. 12, there footnote 5.
  6. Working group church register data recording of the OGF: Guideline church register data recording with GENprofi. Retrieved August 14, 2016 .
  7. Landtag Brandenburg, printed matter 6/8941 (June 2018)
  8. Art. 125 No. 1, Art. 74 Paragraph 1 No. 1 GG ; German Bundestag, court law: Federal legal requirements for corresponding regulations of the states ( WD 7 - 3000 - 034/18 )
  9. Bremisches Höfegesetz of July 18, 1899; around 150 farms (figures based on Gerhard Ruby , Inheritance law in agriculture - which law applies?, 2017)
  10. State Law on Court Regulations (HO-RhPf) of October 7, 1953; around 6,600 farms
  11. ^ Hessian Landgüterordnung of December 1, 1947; around 150 estates
  12. bathroom. Law concerning the closed court estates of August 20, 1898; around 4,000 farm estates
  13. ^ Law on Inheritance Law of February 14, 1930; for the former Württemberg-Baden in the version of July 30, 1948 ( RegBl. p. 165 ), for the former Württemberg-Hohenzollern in the version of June 13, 1950 (RegBl. p. 249)
  14. Third Legal Adjustment Act of December 18, 1995 ( Journal of Laws of 1996 p. 29 ), Art. 28 ; around 7,000 inherited goods
  15. so BVerfG , decision of December 14, 1994 , Az. 1 BvR 720/90; NJW 1995, 2977 ff.
  16. a b Federal Act of May 21, 1958 on Special Provisions for Peasant Inheritance Distribution (Inheritance Act) StF: Federal Law Gazette No. 106/1958 (as amended, ris.bka ).
  17. a b Federal Act of 13 December 1989 on the division of peasant inheritance in Carinthia (Kärntner Erbhöfegesetz 1990) StF: Federal Law Gazette No. 658/1989 (as amended, ris.bka).
  18. a b Law of June 12, 1900, regarding the special legal relationships of closed farms, effective for the ducal county of Tyrol (Kärntner Erbhöfegesetz 1990) StF: GVBlTirVbg. No. 47/1900 (as amended, ris.bka).
  19. a b c Weblink Chamber of Agriculture Carinthia, accessed December 17, 2013.
  20. Lit. Schennach: History of peasant property and inheritance law in Tyrol , p. 1
  21. see § 42 ABGB
  22. The deposits of the closed courtyards are characterized by the deposit numbers from 90,000 upwards.
  23. § 1 Paragraph 2 Inheritance Act
  24. § 11. Takeover price of the Inheritance Act; § 12. Takeover value and § 15. Right to compulsory portion Ktn. Hereditary Farm Act; § 21. Takeover value and § 26 right to compulsory portion Tir. Court law.
    cf. Lit. Schennach: History of the peasant property and inheritance law in Tyrol , chapter Die Anerbensitte , p. 4 f.
  25. § 18. Inheritance Act; § 21. Ktn. Hereditary Farm Act; § 18. Tir. Court law.
  26. § 16.f Inheritance Act; § 16. Ktn. Hereditary Farm Act; § 23. Tir. Court law.
  27. a b Provincial Law of November 28, 2001, No. 17 - Höfegesetz announced in the supplement. No. 1 to A.Bl. dated December 11, 2001, No. 51 (as amended by provinz.bz.it).
  28. a b The closed courtyard: characteristics , provinz.bz.it