Parental support (Germany)

Parental maintenance is the legal obligation of children and (indirectly) also children - in -law to secure the living needs of their (in-law) parents within the scope of their financial means through maintenance payments . The legal basis for these claims against adult children results in Germany from, among other things, §§ 1601 ff., With regard to the children's obligation to pay, in particular § 1601 and § 1602 Paragraph 1 BGB .

In Austria, the so-called care recourse was abolished on January 1, 2018 and replaced by a tax-financed subsidy for care costs amounting to 100 million euros annually.

Maintenance when in need of care

In practice, the question of parental support often arises when the parents or one parent are housed in a retirement or nursing home . After using your own income and assets as well as payments from long-term care insurance , which pays part of the expenses for the need for long-term care depending on the care level granted , as well as payments of care housing allowance , there is often a coverage gap.

Advance payment by social assistance providers

In practice, the difference between income and home costs is often initially covered by the social welfare office . The maintenance claim of the parents, who have now become social welfare recipients, is transferred to the authorities ( Section 94 of Book XII of the Social Code ) as soon as and to the extent that they provide benefits. At this point, the social welfare offices can take the children into payment recourse. To do this, the social welfare office first checks whether the (adult) children can be asked to provide parental support. To this end, the children are often first asked to provide information about their income and financial situation, and at the same time they are sent a legal notice. The income and financial situation according to § 1605 BGB must be presented to the social welfare office . This can be done in the questionnaire sent or as a freely formulated text. The dependent children are then informed of the result.

Entitlement to maintenance under family law

The general family law provisions apply to the maintenance claim, so that in addition to the need of the parent, the child must also be able to work. This must not only be left with the so - called deductible , but also overriding maintenance obligations towards one's own children or the (ex) spouse ( Section 1609 BGB). Your own retirement provision also has priority over parental maintenance. For example, the person obliged to provide maintenance (maintenance debtor) may (in addition to the statutory pension insurance) use a further five percent of their gross income for their own retirement provision over their entire working life. This sum is not taken into account for parental support.

If a person liable for maintenance is called in for parental maintenance, the value of an appropriate self-used property is also not to be taken into account when determining his or her ability to pay (so-called protective assets ). The Federal Court of Justice decided on August 7, 2013. ( Ref .: XII ZB 269/12 ). In the opinion of the BGH, the realization of the property cannot be expected of the person liable for maintenance.

Children can have maintenance obligations towards their parents even if they have not had contact with their parents for years. This emerges from a decision by the Federal Court of Justice (BGH) in February 2014.

In August 2019, the German government announced that parental support for parents in need of care should only apply to children with an annual income of more than 100,000 euros.

On November 29, 2019, the Bundesrat approved the Relief Act, which the Bundestag had passed on November 7. After it has been signed by the Federal President and announced in the Federal Law Gazette, the law can come into force at the beginning of the year as planned.

Procedure at the social welfare agency

The authority cannot decide on any maintenance obligations by administrative act , but has to sue them before the family court. The same applies to the authorities as to the parent who demands maintenance from his descendant.

If a maintenance claim exists under family law, it can still be excluded under social law. A payment obligation denies § 94 Abs. 3 SGB XII z. B. if there would be an unreasonable hardship for the person liable for maintenance.

Exclusion from social benefits

The need for social assistance and maintenance are not always identical; d. H. Recourse cannot be taken against the children for every service provided by the social welfare agency to parents in need. As a rule, recourse to the children is not possible in the case of basic security benefits in old age and in the case of reduced earning capacity ( Section 43 (2) SGB XII).

Various legal issues

Several children are proportionally liable in accordance with their respective employment and financial circumstances ( Section 1606 (3) sentence 1 BGB).

If the parents have made larger donations to the children or other persons within the last ten years , there is the possibility that they can be reclaimed , Section 528 BGB.

Contractual maintenance claims, e.g. B. from partial retirement contracts take precedence over the recovery of donations and the legal maintenance obligation of the children.

In Section 1611 of the German Civil Code (BGB), the law provides for limits on the child's maintenance obligation vis-à-vis the parents if the claim against the children would be an undue hardship for them. The law gives several reasons for this. In practice it is particularly significant that the person entitled to maintenance grossly neglects the person liable for maintenance or has otherwise committed serious misconduct against him. In this case, the children generally only have to provide part of the full maintenance benefit. If the maintenance obligation were grossly inequitable, it would even be completely eliminated.

Disease-related neglect is excluded. The Federal Supreme Court ruled on September 15, 2010 that neglecting the child due to a mental illness would not negate the child's maintenance obligation. The burden on the child in this regard is fateful and encompassed by family solidarity; it does not justify placing the burden of maintenance on the state if the parent later becomes indigent. This also applies if there has been no contact with the parent for several decades and the social welfare provider asserts the maintenance from the transferred right for the costs of accommodating the parent who has now become dependent on the child. It is only different if there is a “recognizable reference to the actions of the state” for the neglect of the child and this has arisen, for example, from an absence due to the war.

In 2014, the BGH ruled that the parents were entitled to maintenance against their children even if contact had been broken for decades; this is only a misconduct, but not a serious one.

If an employee is obliged to pay parental maintenance or is about to make use of it, the employer must take this into account when making his social selection according to § 1 KSchG in the event of operational dismissal.

Grandchildren, skipping a generation

Basically, according to § 1601 BGB, the grandchildren are also obliged to provide maintenance to their grandparents . As a rule, however, the grandparents apply for social assistance if, for example, with their income and assets. B. cannot afford the high costs of the nursing home. The maintenance claim of the grandparents is not transferred to the social welfare provider according to § 94 SGB XII. So the grandchildren don't have to pay for the grandparents' care costs.

Web links

Legal basis of parental maintenance (parental maintenance, consumer advice center NRW, 2nd edition 2017, PDF 74.5 kB)
nah1.de: Information brochure "Caution, nursing home! Children pay for their parents!" (1st edition January 2016, PDF 1.17 MB)
Christine Schniedermann: Children have to pay for their old parents. In: The time . November 13, 2014, accessed September 4, 2018 .
Effects of the Relief for Relatives Act on Parental Maintenance (Wolfram Viefhues, juris, PDF 822 kB)

literature

Hußmann, Wolfram, forfeiture and unreasonable hardship in the case of parental maintenance in the event of a disturbed parent-child relationship (discussion of the BGH, judgment of September 15, 2010, Az. XII ZR 148/09, NJW 2010, 3714) , NJW 51/2010, 3695

Kasenbacher, Martin, The competition between parents and family maintenance (at the same time to BGH, ruling of July 28, 2010, Az. XII ZR 140/07, NJW 2010, 3161) , NJW -Spezial 1/2011, 4

Comments on the German Civil Code (BGB)

Jörg Hauß: Parental support, basics and strategies, with an excursus on grandchildren support . 5th, revised edition. Gieseking, Bielefeld 2015, ISBN 978-3-7694-1136-2 .

Günther Dingeldein, Martin Wahlers: Parental support. Children are responsible for their parents . 2nd Edition. Consumer advice center NRW, Düsseldorf 2017, ISBN 978-3-86336-635-3 .