Inheritance

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The succession occurs with the death of a natural person , the testator. With the inheritance, the entire property of the testator is transferred to the heir (s) in accordance with Section 1922 (1) BGB. The subsequent inheritance does not occur with the death of the testator, but according to § 2106 with the death of the previous heir.

Problem time of death

In inheritance law , it may be necessary to determine the exact time of death of the deceased if other people who are entitled to inheritance vis-à-vis the testator (or vice versa) have died shortly afterwards. This can be the case, for example, if a married couple has an accident together, for example in a traffic accident , an aircraft accident or a ship sinking on the high seas . If it can no longer be ascertained unequivocally which of the two people died earlier, legal presumptions, so-called commorient presumptions (from Latin commorior = to die at the same time) apply .

Problem: international law

If the deceased spouse had different nationalities , since the respective personal status is decisive in international inheritance and disappearance law , the two presumptions of commons in the various countries of origin may diverge. The problem is that the various national laws in different successions and quotas can come can be solved, that the right (and thus the legal presumption) is used by the state in these cases that the family law regulates relations of the deceased (see. Art . 14 EGBGB ) or which are adjusted according to the different quotas determined according to the home rights.

Germany

According to German law , according to the current state of medicine (despite some criticism), total brain death is decisive for the death of a person, i.e. the point in time at which brain waves can no longer be determined (cf. § 3 TPG , also OLG Frankfurt / Main NJW 1997 , 3100). At the time of death, the entire estate is transferred to one or more ( heirs ), Section 1922 (1) BGB .

If a person is missing , the declaration of death establishes the (rebuttable) presumption that the person who has disappeared died at the time specified in the decision ( Section 9 (1) of the Disappearance Act ). If a person who has been declared dead or whose time of death has been determined in accordance with the Disappearance Act survives the determined time, this person can demand the surrender of his property from the alleged heir ( Section 2031 (1) BGB).

Examples

  • A 30-year-old from Hessen explains that he is going to New Zealand as a sheep farmer and breaking off his contacts with Germany. If you haven't heard from him for eleven years, for example, he is not lost because, given the circumstances, there are no serious doubts about his continued existence.
  • A 63-year-old Steve Fossett explains that he will start a sightseeing flight in a light aircraft about 130 km southeast of Reno in the US state of Nevada. After he does not return and all searches are unsuccessful, he has disappeared because the circumstances give rise to serious doubts about his continued life.

If it cannot be determined which of two people died earlier, Section 11 of the Absence Act regulates that both people died at the same time. In terms of inheritance law, this legal presumption has the effect that none of the deceased inherit the other, but is excluded from succession because Section 1923 (1) BGB requires that the heir survive the testator for the right to inheritance.

Great Britain

In British common law , if it cannot be determined which of the two people died earlier, the presumption that the younger of the two died later than the other applies.

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