Berlin Testament
In German inheritance law, the Berlin will is a joint will of spouses or civil partners (see Civil Partnership Act ), in which they set out to inherit each other alone and stipulate that on the death of the last deceased, the estate should fall to a third party.
purpose
The purpose of the Berlin Testament is to ensure that the surviving spouse receives the inheritance of the deceased spouse alone. This goal is achieved by excluding the descendants of the deceased from the line of succession . Otherwise, they would also inherit according to the legal succession , so that the surviving partner would only have half - in the case of separation of property, possibly even a quarter - of the estate, which could lead to larger assets (especially property acquired jointly ) having to be sold.
However, the Berlin Testament makes it possible, either intentionally or unintentionally, to exclude one's own biological children from subordinate succession if the surviving spouse is not the biological parent or parent of these children who was born through adoption . Then, after their death, the surviving spouse can bequeath the entire property exclusively to their biological children or to third parties.
The descendants' right to a compulsory portion cannot be excluded with the Berlin Testament; however, the (often common) children usually become legal heirs or heirs after the death of the second spouse and therefore waive the compulsory portion. Under certain circumstances, a compulsory portion clause such as Jastrow's formula can be used to work towards this.
According to Section 2271 (2) of the German Civil Code ( BGB) , the revocation of a change-related disposition ( Section 2269 of the German Civil Code) within the framework of a Berlin will after the death of the other spouse is no longer possible. This leads to the problem that after the death of the partner, the surviving spouse is bound by the will and in principle can no longer change it in favor of another person. However, so-called remarriage clauses are also permissible in the Berlin Testament, which stipulate that the survivor, in the event of remarriage, must surrender the estate of the first deceased in whole or in part to the common descendants (or third parties) appointed as his or her heirs or that he then has to deal with the Descendants have to deal with. As a rule, the so-called postponing inheritance occurs, but the remarried spouse can now testify freely again, namely over his own assets. With such a clause, the spouses can regulate the remarriage as an imponderable part of their common regulatory plan.
According to § 2287 BGB, gifts that the surviving spouse made during their lifetime with the intention of impairing the final heir can also be reclaimed from the recipient in accordance with the provisions on the surrender of unjustified enrichment. If the surviving spouse interferes with the expected inheritance of a final heir in a joint spouse's testament by making a donation to a third party, the third party may be obliged to hand over the benefit to the final heir after the death of the last deceased spouse if the testator does not have a recognizable lifelong self-interest in the benefit would have. The determination of a lifetime self-interest requires a comprehensive weighing of the interests in the individual case. It may be absent if the testator donates substantial assets primarily due to a change of heart aimed at correcting the disposition due to death.
Unit solution and separation solution
To achieve this, there are essentially two different design options.
In addition to the so-called standard solution presented above , which is fundamentally supported by the presumption of § 2269 BGB, there is also the possibility that each spouse as his previous heir, the third as his subsequent heir and at the same time as a substitute heir in the event of their own survival uses (so-called separation solution) .
Origin of the designation
Today the term Berlin Testament is used as a generic term for both the unified and the separation solution. Sometimes it is also argued that only the one-size-fits-all solution is a Berlin will. The origin of the term “Berlin Testament” is not entirely clear; as far as the origin is traced back to the Berlin practice, today's use is unhistorical. In Berlin practice, under common and Prussian law , the so-called separation solution was predominantly followed with the construction of a pre- and post-inheritance. Rather, the uniform solution was codified in the Bavarian Land Law before the BGB came into force and was preferred to the Prussian separation solution in the legislative process for the Civil Code - with the success of Section 2269 BGB.
Ineffectiveness
According to § 2077 BGB, the joint will becomes ineffective if the marriage is divorced before the death of one of the testators.
The legal dissolution of the marriage is equivalent if at the time of the death of the testator the conditions for the divorce of the marriage were met and the testator had applied for the divorce or had consented to it. If the divorce was applied for by the surviving spouse alone and the divorce proceedings have not yet been concluded at the time of the inheritance, the ineffectiveness of a disposition by the deceased spouse does not apply.
Tax equality of the final heirs
Since the final heirs, if they are not joint descendants, are related to both partners in different ways, the order of death would normally have an impact on the inheritance tax class. However, by submitting an application in accordance with Section 15 (3) ErbStG, you can ensure that the more favorable class is used. In this way, the family of the first deceased is not taxed at a disadvantage.
alternative
From a tax point of view, however, the Berlin Will is often not advantageous compared to wills with the same objectives with different designs, since the children's allowances are not used. In the case of larger assets, it can happen that parts of the assets are taxed when they are transferred to the surviving spouse and again when they are transferred to the children. If real estate (or similar) is available, it may be cheaper to bequeath this (e) to the children (possibly partially) when the first spouse dies and to grant the surviving spouse a usufructuary right .
In other states
In the English-speaking world, a joint will is referred to as joint will or mutual will .
There is also a joint will in Austria. In Austria it is only intended for spouses, unmarried couples and registered civil partnerships do not have this option.
Italian inheritance law does not provide for a will designed in the style of the Berlin will, as a will can only be valid for one person and must be revocable at any time.
A joint will is also excluded in French inheritance law.
The extent to which contracts of inheritance and joint wills such as the Berlin Testament can also be valid in those legal systems that do not have such a will is not clearly defined in many European jurisdictions, neither in law nor in case law.
literature
- Philipp Sticherling: On the concept of the Berlin Testament . In: Legal Training . (JuS) year 2002, issue 12, p. 1248.
Individual evidence
- ↑ Britta Beate Schön: A Berlin will - yes or no? , in: Finanztip , December 18, 2019, accessed on April 3, 2020.
- ^ OLG Hamm: Donations impairing the heirs of the contract. Retrieved October 24, 2017 .
- ↑ "common will". Retrieved October 3, 2014 .
- ↑ "Le testament commun du droit allemand: un exemple à suivre?" Retrieved May 17, 2013 .
- ↑ German Notary Institute in collaboration with Prof. Dr. Heinrich Dörner, Prof. Dr. Paul Lagarde: Comparative law study of the inheritance law regulations of international procedural law and international private law of the member states of the European Union. (PDF; 747 kB) 2002, accessed on May 17, 2013 . Page 190
