Inheritance law (Germany)

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As a subjective right, inheritance law is a fundamental right to regulate dispositions of property or other alienable rights in the event of one's own death and, on the other hand, to also become a beneficiary of such dispositions (to “inherit”). In an objective sense, the term inheritance law also refers to the legal norms that deal with the transfer of the property of a person ( testator ) to one or more other persons upon death.

Property law

Constitutional requirement

The right of inheritance is expressly guaranteed in Article 14 of the Basic Law (GG) . However, it is only mentioned in the Basic Law for traditional reasons as in the Weimar Imperial Constitution . The content and the limits of inheritance law are determined by the simple legal regulations. The freedom of testament , which is also covered by private autonomy , and the relatives' right of inheritance are fundamentally secured .

Civil Law

German inheritance law is essentially regulated in the fifth and last book (inheritance law) of the German Civil Code (§§ 1922–2385 BGB). Since everyone dies, inheritance law is of great general relevance. At the same time, it is currently of great economic importance; objects worth around 400 billion euros are inherited in Germany every year . In addition to the regulations in the fifth book, there are also inheritance norms in other books of the BGB and outside of the BGB. In addition, the Inheritance Tax Act regulates the taxation of inheritance matters. Inheritance tax law, in turn, can give rise to the choice of certain inheritance law design models.

Universal succession

The first norm of inheritance law, § 1922 BGB, determines the principle of universal succession ( universal succession) which is mandatory for German law . It follows that the entire property of the testator at the moment of his death is automatically transferred to the heir (s) determined by will or legal succession, provided that they do not reject the inheritance. Inheritance of individual objects ( singular succession ) is generally not possible. Exceptions to this principle exist for shares in partnerships , limited partnerships and in court law .

Until today it is discussed in jurisprudence whether the testator's obligations are already part of the inheritance according to § 1922 Abs. 1 BGB. This question is, however, of a purely theoretical nature, as Section 1967 BGB separately orders the heirs to assume inheritance liabilities.

Legal succession

If no will or contract of inheritance was effectively drawn up, the legal succession applies. In Germany it is limited to natural persons and knows the tax authorities , which are legal entities , as heirs only if no relatives have been found. The Treasury will inherit even if the inheritance from the last possible heirs knocked out was. As a legal heir, the tax authorities can not reject the inheritance according to § 1942 BGB (compulsory heir ); he is only liable with the estate, not with his own assets, § 2011 BGB.

The spouse's right of inheritance

Spouses compete with relatives of the first and second order, as well as with the deceased's grandparents. The registered life partner also has such a right of inheritance ( Section 10 LPartG).

Household

In accordance with Section 1969 of the German Civil Code (BGB), anyone belonging to the household can demand maintenance if the testator dies up to the thirtieth day after death . This can also include the use of home and household items.

Burial and grave maintenance costs

The heir has to bear the costs of the funeral ( § 1968 BGB). If all heirs have declined, the next dependent relative is liable according to ( § 1615 BGB) for the funeral costs despite the declining. Since January 1, 2004, the statutory health insurance funds have stopped paying death grants to finance the funeral. The burial person has to carry out the burial (based on the funeral law of the respective country). The close relatives have the right to care for the dead , which includes the choice of burial type and place as well as the design of the grave. On the other hand, there is no legal obligation for the heirs to care for graves; however, the deceased can dispose of this in a will.

Disposal by death

The testator can also regulate the succession himself through a will or inheritance contract . Persons entitled to a compulsory portion (i.e. the descendants , the spouse or registered life partner and, in the case of childlessness, the parents) can request the compulsory portion if they are excluded from the legal succession by a death disposition. The compulsory portion is 50% of the statutory portion of the inheritance and can only be withdrawn or limited under the strict conditions of § 2333 to § 2338 BGB.

This institute of the compulsory portion is the greatest restriction of testamentary freedom, but it is constitutional according to established jurisprudence . Further restrictions on the ability to testify are the immorality according to § 138 BGB and the donation prohibition of the Heimgesetz in § 14 HeimG. In most of the federal states, the latter provision is contained in independent home laws of the federal states due to the federalism reform .

Another possible content of an injunction due to death

legacy

Without appointing someone as heir, the testator can favor any person with a legacy ( § 1939 ) BGB. The legacy is merely a legal obligation of the beneficiary ( basis of claim § 2174 BGB). The heir is therefore obliged to fulfill the legacy claim. There is no singular succession .

Edition

A testamentary disposition which obliges an heir or legatee to a performance without another has the right to demand the performance, edition called ( § 1940 BGB). There is no actionable claim of the beneficiary as with the legatee. Anyone who would benefit from the omission of what was burdened with the condition, however, has an actionable claim to fulfillment of the condition.

Execution of wills

The testator can order that his will be carried out by another person (§ § 2197 ff. BGB). The executor has to administer or dispose of the estate . He is entitled to enter into liabilities for the estate, insofar as this is necessary in the context of administration. Furthermore, the executor as a party may, by virtue of his office, sue for rights that are subject to the execution of the will. The executor is only subject to the will of the testator, but not to the instructions of the heirs. He is entitled to appropriate remuneration.

Certificate of inheritance

The certificate of inheritance is the official testimony to the succession and the restrictions placed on the status of heir by the testator (§ § 2353 ff. BGB). It legitimizes the heir in legal transactions and justifies the presumption of correctness and completeness of its content ( § 2365 BGB). Provided that the disposition due to death is contained in a public deed, it can also suffice as proof of succession to the land registry that the disposition due to death is presented together with the opening minutes of the probate court ( Section 35 GBO ).

The certificate of inheritance is only issued upon application by the local court . The district court acts here as the probate court . In the Württemberg part of the state of Baden-Württemberg , the tasks of the probate court were performed by the state notary's office before 2017 ( Section 38 Ba-Wü LFGG).

Special regulations

Unworthiness of inheritance

Legal or voluntary succession is excluded if the heir is unworthy of inheritance . Is unworthy of inheritance according to § 2339 BGB,

Acceptance and rejection

The private autonomy allows the heirs, also refuse an inheritance, so to renounce it. The heir can refuse the inheritance within six weeks of knowing that he is the heir, if he has not already accepted it beforehand, possibly by implication . If the heir is appointed by disposition due to death, the period does not begin before the disposition is announced. The deadline is six months ( Section 1944 (3) BGB) if the testator was only domiciled abroad or if the heir was abroad when the deadline began. The rejection takes place by personal declaration to the probate court responsible for the estate matter ( § 343 FamFG) on the record of the office or in a notarized form. Since September 1, 2009, the rejection can also be declared before the probate court at the domicile of the rejecting party ( Section 344 (7) sentence 1 FamFG). After the deadline, the inheritance is considered accepted. Legal basis: § § 1944 ff. BGB. A guardian or legal supervisor needs the approval according to § 1822 BGB. The acceptance or the rejection of an inheritance can be contested under the conditions of § 1954 BGB; the failure of the disclaimer period according to 1956 BGB.

Waiver of inheritance and compulsory portion ( abdicatio heredis )

Relatives as well as the spouse of the testator can waive their statutory right of inheritance through a contract with the testator - i.e. before the inheritance occurs . The waiver is then excluded from the legal succession, as if he was no longer alive at the time of the inheritance; he also has no right to a compulsory portion . The waiver of inheritance can be limited to the right to a compulsory portion. A special case is the waiver of donations standardized in § 2352 BGB . Anyone who is appointed as an heir by will or given a legacy can then waive the donation by contract with the testator. The contracts referred to herein must notary notarized his ( § 2348 ).

Purchase of an inheritance

The inheritance is a sellable good. The contract requires notarial certification in accordance with Section 2371 of the German Civil Code . In the event of the sale of an inheritance to a non-heir, the co-heirs have the right of first refusal ( Section 2034 BGB).

Inheritance tax

The federal legislature has designed a progressive tax . From an exemption , a tax rate is due depending on the amount of the inheritance. The closer the heir is to the testator, the lower the tax rate (three-tier tax). The tax is determined according to the Inheritance Tax Act ( § 15 , § 19 ErbStG).

On January 1, 2009, a new law on inheritance and gift tax came into force after the “old” inheritance tax law had been declared unconstitutional. The new inheritance tax law provides for significantly higher allowances for spouses (500,000 euros instead of 307,000 euros), children (400,000 euros instead of 205,000 euros) and grandchildren (200,000 euros instead of 51,200 euros). Taxation on the inheritance of companies has also been reorganized. As a rule, 85 percent of the company's value is now exempt from taxation. However, there is also an option for a hundred percent tax exemption when inheriting companies. Experts doubt that the new inheritance tax will meet the requirements of the constitution.

Fiscal inheritance

The fiscal inheritance occurs if at the time of the inheritance there is neither a relative, a civil partner nor a spouse of the deceased. The heir is then the state in the form of the federal state to which the testator belonged at the time of death ( Section 1936, Paragraph 2 BGB), usually handled by the Ministry of Finance or the district government. The state cannot refuse the inheritance that has accrued to it as a legal heir, Section 1942 (2) BGB. Otherwise see state inheritance law .

Deaths in the GDR

The succession in respect of deaths in the GDR before 3 October 1990 is taking place in accordance with the Unification Treaty largely after there since 1976 valid what has been the Civil Code (CC).

Inheritance law since January 1, 2010

On January 1, 2010, the law amending the law of inheritance and statute of limitations came into force. The main concern of the reform is to modernize the grounds for withdrawing the compulsory portion , although the amount of the compulsory portion was not affected. In addition, the deferral regulations have been expanded. Furthermore, a sliding preclusion period for the compulsory portion supplement claim has been added to the law. The intended better rewards for care services in the case of inheritance compensation was only implemented to the extent that the new § 2057a BGB provides that the care benefits of those descendants who have not given up professional income are now also taken into account in the inheritance compensation . Another main objective of the reform was to shorten the statute of limitations for family and inheritance claims, which are now subject to the standard statute of limitations of three years (Section 195 BGB) and only in exceptional cases to the thirty-year limitation period .

Conflict of laws

EU inheritance law regulation

Since August 17, 2015, the law applicable to legal succession in international private law has been based directly on the EU Inheritance Law Ordinance (ErbVO). Only insofar as the law applicable to the legal succession of death does not fall within the scope of the Hereditary Ordinance, there is scope for national law.

Art. 15 of the Law on International Inheritance Law and the Amendment of Regulations on Certificates of Inheritance and the Amendment of Other Regulations of June 29, 2015 takes this changed legal situation into account.

Since then, Art. 25 of the Introductory Act to the Civil Code (EGBGB) has determined that the provisions of Chapter III of the Inheritance Ordinance apply accordingly in order to ensure that the conflict of laws under inheritance law is as consistent as possible. Art. 26 EGBGB in its new version only contains rules of the formal status for dispositions due to death. For last wills it remains in the applicability of the Hague Convention of 5 October 1961 (26, Section 1 of Art.. BGB) applicable on the Testamentary the form Dispositions, which the Federal Republic of Germany has agreed with the law of 27 August 1965 for Inheritance contracts are governed by the ErbVO (Art. 26 Paragraph 2 EGBGB).

Legal situation until August 16, 2015

Inheritance statute

According to Art. 25 Para. 1 EGBGB, the inheritance statute is the right of the deceased to be at home at the time of his death. In doing so, the renvoi according to Art. 4 Paragraph 1 Sentence 1 EGBGB must be observed.

Example: The Frenchman E dies in Hamburg without leaving a will. He has lived and worked in Hamburg for 30 years and leaves behind a piece of land and several bank accounts in Germany.
Article 25 (1) EGBGB invokes French law. This refers to by renvoi for personal property on the right of the last habitual residence and Immobiliarvermogen to the situs law, so-called. Scission . Thus, German law applies again, which the reference now accepts.

The inheritance statute also applies to registered civil partnerships in accordance with Art. 17b (1) sentence 2 EGBGB, unless the civil partner has no inheritance right according to this. In this case, the law of the state keeping the register applies. According to Art. 25 (2) EGBGB, the testator can choose German law for immovable property located in Germany. Immovable property includes land, parts of land and accessories, but also limited rights in rem . Art. 25 para. 2 EGBGB is not to be expanded on all sides, d. H. Italian law cannot be selected for Italian properties, for example.

The choice of law according to Art. 25 (2) EGBGB is an independent legal transaction . It is subject to the form of Art. 26 EGBGB. The ability to testify is to be determined according to German law. A partial choice of law is permissible, i.e. the choice of law can be limited to just one property in Germany if several properties are inherited. If the testator chooses German law for his entire estate, it is disputed whether this can at least be maintained with regard to real estate located in Germany. According to the prevailing view, this must be answered in the affirmative analogously to Section 2085 BGB ( validity-preserving reduction ).

Form of disposal upon death

An exception to the general inheritance statute are dispositions due to death . The formal requirements of Art. 26 Para. 1 to 4 EGBGB largely follow the Hague Convention on the Law to be Applied to the Form of Wills of 5 October 1961 (the so-called incorporated State Treaty ). The diverse, alternative links serve the purpose of not considering wills invalid for reasons of form ( favor testamenti ) . There is no renvoi for the references of Art. 26 Paragraphs 1 to 4 EGBGB . The testability is not to be judged according to the general legal capacity of Art. 7 Para. 1 EGBGB, but is subject to the inheritance statute. Article 26, Paragraph 5 of the EGBGB must be observed when changing the statutes: The validity of the will is to be assessed according to the hypothetical inheritance statute at the time the disposition is drawn up; even a subsequent change in the inheritance statute cannot change this.

Qualification questions

The qualification is initially questionable in the case of inheritance problems in company law. A distinction must be made here between corporations and partnerships: The inheritance statute decides on the inheritance of company shares in a corporation, since the existence of the company is not affected by the death of a partner. This is different with partnerships: Here the company statute first decides whether the status of a partner is hereditary at all. The inheritance statute then decides who takes on the partnership status.

The qualification of the matrimonial property law equalization between spouses in the event of death is also highly controversial, especially in the German law of § 1371 BGB. The case law qualifies the provision in terms of property law, since the provision concerns a special order of property during marriage. In contrast, the literature advocates an inheritance law qualification or double qualification .

literature

Textbooks

Comments

Others

Web links

Individual evidence

  1. ↑ ZEIT ONLINE: Assets: Heirs receive far more assets than previously assumed . In: The time . July 5, 2017, ISSN  0044-2070 ( zeit.de [accessed January 24, 2019]).
  2. ^ Meyer-Pritzl, Rudolf: Inheritance law . In: Martinek, Michael (Ed.): Staudinger BGB. Cornerstone of civil law . 2014/2015 edition. Selier de Gruyter, Berlin 2014, ISBN 978-3-8059-1164-1 , pp. 1203 (paragraph 36) .
  3. ↑ Dieter Leipold: Munich Commentary on the Civil Code . 7th edition. CH Beck, Munich 2017, p. § 1922, Rn. 16 .
  4. ↑ On the constitutionality of the unworthiness of inheritance, see the decision of the Federal Constitutional Court of April 19, 2005 .
  5. ↑ Draft of the federal government of a law on international inheritance law and amending regulations on the certificate of inheritance and amending other regulations , BR-Drs. 644/14 of December 29, 2014, p. 77 ff.
  6. ↑ BGBl. I, 1042
  7. ↑ Law on International Inheritance Law and the Amendment of Regulations on Certificates of Inheritance and the Amendment of Other Regulations DIP , accessed on March 3, 2017
  8. ↑ Federal Law Gazette 1965 II pp. 1144, 1145
  9. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 9 Rn. 5-8.
  10. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 9 Rn. 8a.
  11. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 9 Rn. 9-15.
  12. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 9 Rn. 16-30.
  13. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 9 Rn. 33-44.
  14. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 9 Rn. 45-49.
  15. ↑ Bernd von Hoffmann, Karsten Thorn: Internationales Privatrecht: Including the basics of the international civil procedure law . 9th edition. CH Beck, Munich 2007, § 9 Rn. 53-55.