Jastrow's formula
The Jastrow formula (named after the author of an article in the Deutsche Notar-Zeitschrift 1904, page 424 ff., In which it was proposed for the first time) is a design option within the framework of joint wills ( see: Berlin Testament ) or inheritance contracts according to German inheritance law , to prevent the assertion of compulsory portion claims as far as possible. Jastrow's formula (also called Jastrow's clause) is a qualified compulsory portion clause.
Problem background
If the spouses are mutually appointed as heirs, their descendants are excluded from the succession until the surviving spouse also dies. However, at the time of the death of the first spouse, the descendants are still entitled to the compulsory portion (which can only be excluded in a few cases by withdrawal of compulsory portion ) from Section 2303 (1) sentence 1 BGB . The right to a compulsory portion is aimed at monetary payment. This is often problematic, especially if the estate consists primarily of real estate, etc., which should actually be kept for the surviving spouse. Therefore, so-called compulsory portion clauses are included in the joint will or the inheritance contract in order to prevent the assertion of claims as far as possible.
According to the compulsory portion clause, a descendant who demands the compulsory portion on the death of the first deceased will only receive the compulsory portion on the death of the last deceased, i.e. less than his full legal inheritance. The descendant is to be prevented from claiming the compulsory portion.
content
The Jastrow formula means a further tightening of the so-called simple compulsory portion penalty clause described above. According to this, those descendants who do not claim a compulsory portion after the death of the first-dying parent, in addition to their inheritance after the death of the first-surviving parent, receive bequests from the first-dying parent e.g. B. in the amount of their legal inheritance, i.e. more than just the compulsory portion. In some cases, the interest on the financial legacies between the first and the second death is expressly ordered. In the Kautelar practice there are also proposals to suspend the financial legacy to a multiple of the legal inheritance in order to further reduce the value of the estate of the surviving spouse.
effect
By asserting the compulsory portion, the other descendants receive legacies z. B. in the amount of their legal inheritance. The person claiming the compulsory portion is not only excluded from the succession, but the estate of the last deceased is reduced by the deferred prior legacies of the other descendants, so that the compulsory portion after the last deceased is lower. In some cases, it is also proposed that interest be paid on the previous legacies. However, this must be carefully considered, as not inconsiderable income tax can accrue.
admissibility
The supreme court has not yet decided whether Jastrow's formula is permissible and whether it actually shows the desired consequences in the event of inheritance. However, the admissibility of a mandatory portion clause is generally recognized and in particular does not violate Sections 134, 138 BGB. That is why the Jastrow clause is also considered permissible by the prevailing opinion.
If the disinherited descendant is in need of social assistance, the social assistance provider can demand the assertion of the compulsory portion despite the penalty clause in order to eliminate his own need for assistance. Under certain circumstances, however, this entitlement can be considered unusable, with the result that the social welfare institution pays provisional and transfers the entitlement to itself in order to assert it. This is the case, for example, if the estate consists exclusively of material assets (such as real estate) and the heir is unable to satisfy the descendant's claim to a compulsory portion with his own financial means. Likewise, the assertion can, under certain circumstances, represent a particular hardship, which in principle excludes utilization, for example if the heir is also the mother of the disinherited descendant and the assertion of the compulsory portion would make it need help or even become homeless.
See also
Individual evidence
- ↑ Worm: RNotZ 2003 . S. 535 ff. (553) with further references .
- ↑ Horn: Scherer, Lawyers' Manual Inheritance Law . 4th ed., 2014. CH Beck, Munich, p. Section 21 marginal no. 18 mwN .
- ^ Reymann: juris PK-BGB, § 2177 Rn. 34 ff. With further references, 7th edition 2014.
- ↑ BSG, May 6, 2010, AZ B 14 AS 2/09 R
