Legal succession

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With the legal succession is succession of the testator regulated when this no testamentary disposition, so no effective Testament and no effective inheritance contract has left, the last will successfully challenged was or testamentary heir inheritance knocked out has. If the testator only dispose of part of his property in a last will, the legal succession applies with regard to the other part.

If several persons become legal successors, the statutory inheritance law also regulates how large the share of the individual co-heirs is in the joint assets of the community of heirs .

Germany

The legal succession is regulated in § 1924 to § 1936 BGB. Relatives and the surviving spouse or partner are primarily considered as legal heirs. Are not entitled to inherit Verschwägerte .

Relative inheritance

As a rule, the relatives inherit (in addition to the spouse) according to the legal succession. The relatives are divided into orders of heirs. The law distinguishes the following orders ( description of the relationship in the example always from the testator's point of view ):

  1. Order: descendants of the testator ( all persons descending from the testator, i.e. children, including illegitimate and adopted children, grandchildren, great-grandchildren, etc .; not stepchildren or foster children ), § 1924 BGB
  2. Order: parents of the testator and their descendants ( father, mother, brother, sister, nephew, niece, great-nephew, great-niece , etc.), § 1925 BGB. If both parents are still alive at the time of the inheritance, their children (i.e. usually the siblings of the deceased) do not inherit anything. If only one parent is still alive, he receives half, and the remainder is divided between the descendants of the deceased parent. If there are no children, the surviving parent inherits alone. If both parents no longer live, their children receive the inheritance share (right of entry).
  3. Order: grandparents of the testator and their descendants ( grandfather, grandmother, uncle, aunt, cousin, etc.), § 1926 BGB
  4. Order: great-grandparents of the testator and their descendants ( great-grandfather, great-grandmother, great-uncle, great-aunt , etc.), § 1928 BGB
  5. and more distant orders: more distant ancestors of the testator and their descendants, § 1929 BGB

After this formal distinction, the system of order is now fundamental. According to this, a relative is not called to inheritance if there is a relative of the previous order (including himself) ( Section 1930 BGB). First-order relatives thus exclude all other relatives. An exception applies to the law of spouses' inheritance.

The principle of representation applies within the order. According to this, a relative living at the time of the inheritance (i.e. at the death of the testator) excludes all persons related to the testator through him. For example, if the testator leaves behind a son and grandson, the surviving son excludes the grandson (who is related to the testator through him).

The estate is distributed somewhat differently in the various orders.

The so-called tribal principle applies within the 1st order : the heirs who are related to the testator through the same relative each form a tribe. In other words: each child of the testator opens a new tribe, each tribe inherits in equal parts.

Within the 2nd and 3rd order, the so-called inheritance law according to lines applies : The estate is divided equally between the two parents of the testator. If they still live at the time of the inheritance, they inherit alone, d. H. the brother and sister of the testator are excluded from the inheritance through the parents. The same applies to the 3rd order, in which the estate is divided equally between the four grandparents' parts. If one or both parents (one, several or all of the grandparents' parts for the 3rd order) are no longer alive at the time of the inheritance, the part (s) of the inheritance attributable to the deceased parent (s) (grandparent) becomes their descendants as in the case of inheritance law, divided according to the tribal principle .

From the 4th order onwards, only the person who is most closely related to the testator inherits; several equally close relatives inherit in equal parts. Closely related means that relatives are searched according to the following scheme: great-grandparents, their children, their grandchildren, their great-grandchildren ..., great-great-grandparents, their children, their grandchildren, their great-grandchildren ..., great-great-great-grandparents, their grandchildren, their great-grandchildren .... As soon as a person has been found according to this scheme, the search continues within the same relationship. All persons found in this way, who are all related to the deceased in the same way, inherit in equal parts.

Examples

  • If the testator had two sons who each also have two sons (from the testator's point of view: grandchildren), and if the first son of the testator died before then, the sons of the previously deceased son and the surviving son are called as heirs. Each tribe receives 1/2, i.e. the surviving son 1/2 and the two sons of the previously deceased 1/4 each. The sons of the surviving son go away empty-handed because of the principle of representation.
  • The childless, unmarried testator leaves behind his father, brother and sister. The estate is initially divided between both parents, so that the father and mother would each receive half. Since the father is still alive, he keeps half of the estate. Since the mother is no longer alive and is therefore unable to inherit , the half that is attributable to her is divided equally between her descendants (brother and sister of the testator). This means that they each receive 1/4 of the estate.
  • The childless, unmarried testator leaves an uncle (brother of the mother) and two uncles and an aunt (siblings of the father). The testator's grandparents and parents have also passed away. The inheritance is first divided equally between the four grandparents (1/4 each). If a grandparent is still alive, he or she will inherit this quarter of the estate alone. However, since these are no longer alive, they are not entitled to inheritance. Their descendants take their place. This means here: the brother of the testator's mother receives both 1/4 parts of the estate that is attributable to the maternal grandparents, thus 1/2 in total. The two uncles and the aunt on the paternal side would have to share the 2 × 1/4 parts allotted to the paternal grandparents, so that each of them receives 1/6. (2 × 1/4 = 1/2 → 1/2 / 3 = 1/6)
  • The childless, unmarried testator no longer has any parents. All of his siblings died without leaving any descendants. So there are no first and second order heirs. The grandparents only had one child each and have already died. So there are no third-order heirs. The great-grandparents all died, but there were a few children in each family, but all of them have already died. These children each had children again, four of them are still alive. These four inherit in equal parts.

Special features of parentage

Also entitled to inheritance is anyone who at the time of the inheritance was not yet born but has already been conceived ( Nasciturus ), Section 1923 (2) BGB. This person entitled to inheritance is usually represented by a fruit groom .

Since January 1, 1977, the birth relatives have also included adopted persons. In the case of adoptions before this date, however, the right of inheritance could be contractually excluded.

Since July 1, 1970, illegitimate children were entitled to inheritance vis-à-vis the father (and paternal relatives) within the framework of the illegitimate law , but only if they were born on or after July 1, 1949. However, until March 31, 1998 ( reform of the law on children of children ), they were not part of a community of heirs alongside legitimate children or a spouse of the father , but had to be paid out (a structure similar to the compulsory portion right ).

It was also possible to obtain the inheritance portion already during the father's lifetime (between the 21st and 27th year of the child's age) as a so-called early inheritance compensation in cash (based on the father's previous maintenance obligations), comparable to the renunciation of inheritance . This could be notarized , agreed between father and child or sued by the child. It was not until April 1, 1998 that these children were given full inheritance rights.

The European Court of Human Rights (ECHR) ruled on May 28th, 2009 that the inheritance-related disadvantage of illegitimate children born before the above date violates the European Convention on Human Rights. The law on inheritance equality of illegitimate children of April 12, 2011 was promulgated in the Federal Law Gazette on April 15, 2011 (Federal Law Gazette 2011, Part 1 No. 17, p. 615). For deaths after the law came into force, all children born out of wedlock before July 1, 1949 are treated as legitimate children. They inherit their fathers as legal heirs.

Special features apply to deaths that occurred before the new regulation. Since the property of the deceased has already passed to the heirs appointed according to the old legal situation, the inheritance can only be withdrawn or reduced again within very narrow constitutional limits: The new regulation can be extended to deaths that only arise after the decision of the ECHR on 28. May 2009. Because since the decision, the heirs appointed under the old law could no longer rely on their inheritance. For children born out of wedlock whose fathers died before May 29, 2009, the previous legal situation had to remain in principle due to the constitutional prohibition of retroactive effects.

An exception concerns cases in which the state itself became an heir (Section 1936 BGB) because there were no relatives , spouses or partners or because the inheritance was rejected . In such a constellation, the state has to pay out the value of the property it has inherited to the illegitimate children concerned.

Spousal inheritance law

The marriage does not make the spouse a relative of the testator ; through the marriage he does not come into the circle of heirs described above. His legal inheritance law is based on special regulations. These assume a marriage that exists at the time of death. If a divorce petition was already pending by the testator and this should have been successful, or if the testator declared to the family court that he consented to the divorce, the spouse leaves as heir.

The amount of the spouse's inheritance is determined accordingly

  • the group of people who are entitled to inheritance in addition to the spouse, and
  • the property regime in which the spouses lived at the time of the inheritance .

The spouse is entitled to the marital household effects and the wedding gifts in advance (so-called advance , cf. § 1932 BGB).

If, in addition to the spouse, statutory heirs of the first order (= descendants of the testator) are also entitled to inheritance, the surviving spouse inherits 1/4 of the estate ( Section 1931 (1) BGB). If legal heirs of the second order (= parents of the testator, siblings of the testator, nieces / nephews, etc.) exist in addition to the spouse, or if the deceased's grandparents are entitled to inheritance in addition to the surviving spouse, the surviving spouse inherits half of the estate. In relation to all other relatives of the deceased, the surviving spouse inherits the entire estate.

This so-called inheritance law solution is corrected by the property regime in which the spouses lived at the time of the inheritance :

  1. If the spouses lived in the property regime of the separation of property at the time of the inheritance , the estate will be divided equally between them and the surviving spouse if there are one or two children of the deceased who are entitled to inheritance ( Section 1931 (4) BGB). This ensures that the surviving spouse inherits at least as much as the deceased's descendants who are entitled to inheritance.
  2. If the property regime of the community of gains existed between the spouses , the inheritance quota of the surviving spouse is increased by a flat rate of 1/4, regardless of whether the deceased spouse made a (higher) gain ( § 1371 BGB). This means that the surviving spouse of a marriage, for which the statutory property regime of the community of gains applied at the time of the inheritance, next to legal heirs of the first order 1/2, next to legal heirs of the second order or the grandparents entitled to inherit 3/4, and the others legal heirs receives the entire estate.
  3. In the case of community of property , it remains solely with the purely inheritance law regulation described above. Since in a community of property the surviving spouse already owns half of the testator's property (as far as it relates to the common property ), it is ensured that he receives more in value than existing descendants of the testator who are entitled to inherit, even without correction.

The provisions on the spouse apply accordingly to the life partner of a same-sex civil partnership .

Inheritance law of the state

If there are neither relatives nor a spouse of the testator, according to § 1936 BGB the tax authorities of the federal state to which the testator belonged at his death is the legal heir (so-called state inheritance law ). The state has no right to disclaimer ( Section 1942 (2 ) BGB ) or to renounce inheritance , but is only liable to creditors up to the amount of the estate.

Inheritance law in Europe

International inheritance law is regulated in the EU Inheritance Law Ordinance (EuErbVO) of July 4, 2012, which applies to all member states of the European Union with the exception of the United Kingdom, Ireland and Denmark and is directly applicable in the Federal Republic of Germany. According to the general rule of conflict in Art. 21 EuErbVO, the legal and voluntary succession is determined by the law of the state in which the testator had his habitual residence at the time of his death . If, as an exception, the totality of the circumstances shows that the testator had an obviously closer connection to another state at the time of his death, then the law of that other state shall apply. A person can acc. Art 22 EuErbVO for the willful legal succession upon death, choose the law of the state whose nationality you have at the time of the choice of law or at the time of your death. A person who has multiple nationalities has a choice under the inheritance law of these countries.

Insofar as the law applicable to legal succession in the event of death does not fall within the scope of the EuErbVO, there is room for national law. Art. 25 of the Introductory Act to the Civil Code (EGBGB) stipulates that the provisions of Art. 21, 22 of the EuErbVO apply accordingly for reasons of the greatest possible synchronization of inheritance law conflict of laws. Regulations contained in bilateral agreements on the law applicable to legal succession due to death remain unaffected (Art. 75 Para. 1 EuErbVO).

The EuErbVO follows the principle of inheritance unity, according to which the entire estate is subject to a uniform law. A division of the estate by choice of law is not permitted (Art. 22 ErbVO). Third-country conflict-of-law laws sometimes make the inheritance of land subject to the location.

Austria

Parentel system

The legal succession is regulated in Austrian inheritance law in §§ 727 ff. ABGB . The system of lines (also called the parentele system ) applies , which is very similar to the German orders ; the closer line excludes the more distant one. Within the line, the ancestors inherit before the descendants, that is, before the sister inherits something, the mother and father must have died.

The first line ( 1st parent ) consists of the (legitimate and illegitimate) children of the deceased (= testator) and their descendants. The second line ( 2nd parentel ) is formed by the parents and their descendants, the third ( 3rd parentel ) by the grandparents and their descendants. The last line consists only of the great grandparents. According to these, the inheritance limit exists . The deceased's spouse inherits 1/3 of the estate alongside the deceased's children; next to the parents and their children as well as the grandparents he inherits 2/3. Since the FamErbRÄG 2004, the portions of the inheritance that went to the descendants of the testator's siblings have been given to the spouse. Descendants of the grandparents have no legal inheritance right apart from the spouse.

The Treasury

If there is no person entitled to inheritance or if no one acquires the inheritance, the estate falls to the state as an inherited property (§ 760 ABGB, caducity ). This is not an inheritance and is only liable to the extent of the estate. If the state does not make use of its right of reversion, the estate becomes ownerless .

International private law

The EU Inheritance Law Ordinance (EuErbVO) of July 4, 2012 is also directly applicable in Austria .

Switzerland

In Switzerland, inheritance law is regulated in Part Three of the Swiss Civil Code (ZGB) . In Switzerland, too, the legal succession is based on the Germanic parent system, but the degree of kinship does not matter.

  • 1. Parentel: descendants of the testator (children, grandchildren, great-grandchildren, Art. 457 ZGB )
  • 2. Parentel: Parents of the testator and their descendants (father, mother, siblings, nieces and nephews, Art. 458 ZGB )
  • 3. Parentel: grandparents of the testator and their descendants (grandfather, grandmother, uncles and aunts, Art. 459 ZGB ).

In contrast to the German legal succession, the relatives 'right of inheritance ends with the grandparents' tribe. ( Art. 460 ZGB)

For the spouse or registered partner who do not belong to the tribal order, there are separate regulations in the law ( Art. 462 ZGB): Surviving spouses and surviving registered partners receive half of the inheritance if they have to share with offspring or three quarters of that Inheritance if they have to share with heirs of the parental tribe. If there are no heirs from the parental tribe, they will receive the entire inheritance.

See also

literature

  • Holger Holl: The state's right of inheritance . In: Rpfleger . The German Rechtspfleger . No. 6 , June 2008, ISSN  1612-6394 , p. 285 .
  • Herbert Bartsch, Malte B. Bartsch: The current law of inheritance. Pension provision - taxes - entitlements . The new inheritance tax with the reform of inheritance law. 15th edition. Walhalla, Regensburg 2010, ISBN 978-3-8029-3525-1 .
  • Armin Ehrenzweig : System of Austrian general private law . 2nd edition, II / 2: Family and inheritance law. Vienna 1937
  • Gunter Wesener : History of inheritance law in Austria since its reception . (= Research on recent private law histories 4). Graz-Cologne 1957.

Web links

Individual evidence

  1. ^ Legal succession website of the Federal Chamber of Notaries , accessed on January 17, 2018
  2. ↑ Regulation (EU) No. 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, the recognition and enforcement of decisions and the acceptance and enforcement of public documents in matters of succession and the introduction of a European certificate of succession OJ L 201/107 of July 27, 2012
  3. ↑ in the version of Art. 15 No. 4 of the Act on International Inheritance Law and on the Amendment of Regulations on Certificate of Inheritance and on the Amendment of Other Regulations of June 29, 2015, Federal Law Gazette I p. 1042
  4. ^ Draft of a law on international inheritance law and amending regulations on the certificate of inheritance and amending other regulations BT-Drs. 18/4201 of March 4, 2015, p. 66 f.
  5. ^ Martin Fries: International Private Law. Unit 10: Inheritance Law University of Munich 2017, p. 11
  6. ^ Statutory inheritance law website of the Federal Chancellery , as of January 1, 2017
  7. ↑ The new European Inheritance Law Ordinance is on the website of the Austrian Chamber of Notaries , accessed on October 3, 2019
  8. ↑ Sonja Barnreiter: (St) Erben in der EU - The new EU Inheritance Regulation May 13, 2015
  9. ↑ Bernhard Maag: Legal Succession. ( Memento of the original from January 18, 2018 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. Retrieved January 17, 2018. @1@ 2Template: Webachiv / IABot / www.caselaw.ch
  10. ↑ Bruno Huwiler: Inheritance Law University of Bern 1999/2003, p. 4