Compulsory portion (Germany)

The compulsory portion in German inheritance law , standardized in the German Civil Code (BGB), ensures close relatives a statutory minimum participation in the estate and thus sets a legal limit to testamentary freedom . Descendants ( Section 2303 Paragraph 1 Sentence 1 BGB), the parents and the spouse (Section 2303 Paragraph 2 Sentence 1 BGB) or the life partner ( Section 10 Paragraph 6 Civil Partnership Act ) of the testator therefore also receive an economic share in the estate, if they are excluded from legal succession by a disposition due to death ( will or inheritance contract ) . For this purpose, they are entitled to a compulsory portion against the heir (s) appointed by the testator. In certain cases, a legal heir can assert the right to a compulsory portion even after the succession has been surrendered , for example the surviving spouse in the case of a community of gains ( Section 1371 (3) BGB) or in the case of an inheritance with restrictions and encumbrances ( Section 2306 BGB).

The right to a compulsory portion is worth half of the statutory portion of the inheritance and is aimed at payment of a corresponding amount of money. The heirs can neither meet this claim with material assets from the estate, nor can the person entitled to a compulsory portion demand the surrender or transfer of property from the inheritance.

If a legal heir is given an inheritance portion of less than half of the legal inheritance portion by disposition upon death, he is entitled to the additional compulsory portion ( § 2305 BGB), which gives a payment claim against the other heirs.

Constitutional foundations

In terms of constitutional law, the issue of whether the statutory compulsory portion affects the testator's property guarantee is less an issue. Rather, it is generally assumed that the granting of a compulsory portion as a safeguarding of the right of inheritance according to Article 14, Paragraph 1, Sentence 1 of the Basic Law (GG) is itself protected by the constitution. The Federal Constitutional Court regards the compulsory portion right as an expression of the right of inheritance of relatives, which is guaranteed by Art. 14 GG. At the same time, it is also the outflow of marriage and family, which are protected by Article 6, Paragraph 1 of the Basic Law.

Persons entitled to a compulsory portion

Children within the meaning of the right of parentage of the BGB, adopted children, spouses and registered life partners of the testator are always entitled to a compulsory portion ( Section 2303 BGB). More distant descendants (grandchildren, great-grandchildren, etc.) and the parents of the testator are only entitled to a compulsory portion according to § 2309 BGB if no descendant who would exclude them in the case of legal succession can demand the compulsory portion.

If the person entitled to a compulsory portion receives social assistance, the social assistance provider can transfer the entitlement to a compulsory portion up to the amount of his expenses to himself, § 93 SGB XII . The decision of the person entitled to the compulsory portion does not matter here. On the other hand, the right to refuse the inheritance in order to generate the right to a compulsory portion cannot be transferred.

Withdrawal of compulsory portion

For certain reasons, the testator can withdraw the compulsory portion from the person entitled to the compulsory portion. According to Section 2336 of the German Civil Code (BGB), the withdrawal of the compulsory portion must be carried out by a disposition due to death, i.e. by a will or an inheritance contract . The reason for the withdrawal must exist at the time of establishment and be stated in the testamentary disposition , namely at least the core facts about which a court can take evidence if necessary. The burden of proof is borne by the person who invokes the revocation, i.e. regularly the heir claimed by the person entitled to a compulsory portion.

According to § 2333 BGB, the testator can withdraw the compulsory portion from a person entitled to a compulsory portion if the latter

seeks the death of the testator, the testator's spouse, another descendant or a person closely related to the testator;

is guilty of a crime or a serious willful misdemeanor against one of the persons specified in number 1;

maliciously violates his or her statutory maintenance obligation towards the testator or

has been sentenced to imprisonment of at least one year without parole for an intentional criminal offense and the descendant's participation in the estate is therefore unreasonable for the testator. The same applies if the placement of the descendant in a psychiatric hospital or in a rehab facility is legally ordered because of a similarly serious deliberate act.

forgiveness

If the testator has forgiven the person entitled to the compulsory portion before the disposition is drawn up, the right to withdraw it expires. If he forgives him after the disposition has been made, the disposition that deprives the compulsory portion becomes ineffective. Forgiveness is any behavior through which the testator expresses that he no longer feels the offense inflicted on him as such. The older jurisprudence differentiates between reconciliation and forgiveness and considers forgiveness without reconciliation, but also reconciliation without forgiveness, to be possible. A form is not prescribed for forgiveness. If the person entitled to a compulsory portion claims that the testator has forgiven him ( § 2337 BGB), the burden of proof falls on him and not on the heir.

Limitation of compulsory portion (in good faith)

If a descendant of the testator has surrendered to such a degree of waste or if he is over-indebted to such an extent that his later acquisition is significantly endangered, the testator can redesign the compulsory portion of the descendant in accordance with § 2338 BGB so that not he, but first whose legal heirs should receive the compulsory portion after the death of the descendant. The descendant is then only entitled to the annual net income of his compulsory portion. According to the prevailing opinion, waste in the sense of the law presupposes a tendency towards pointless and pointless expenditure. In addition, however, due to the constitutional interpretation of the provision, one must demand a pathological disorder that would justify the ordering of care. Over-indebtedness occurs when the descendant's liabilities exceed its assets. In any case, the waste or over-indebtedness must reach a level that the subsequent acquisition of the descendant, in particular the expected acquisition of compulsory portion, is seriously endangered. There must therefore be a risk that the compulsory portion would be completely or largely consumed by the debts or would be lost due to waste.

The restriction on the compulsory portion also becomes ineffective if the descendant has permanently turned away from the wasteful life in the event of inheritance or if the over-indebtedness which is the reason for the restriction no longer exists. It is sufficient if the reason does not apply to the extent that there is no longer any significant risk.

Content and amount of the compulsory portion

The compulsory portion consists of half the value of the statutory inheritance portion ( § 2303 BGB). The legal share of inheritance is regulated in §§ 1922–1934 BGB.

Example : The widowed testator E dies and is survived by his children A and B. In his will he made A the sole heir and disinherited B. B asserts the compulsory portion. According to the rules of legal succession, he would have received 1/2 of the estate. His compulsory portion is therefore 1/4.

By applying for the compulsory portion of child B, the inheritance share of child A decreases:

Example claiming the compulsory portion
child	Share of inheritance according to will	→	B applies for compulsory portion
A.	100%		75%
B.	0%		25%

The following applies to widowed or unmarried testators: If the testator had at least one descendant of the 1st order (e.g. son or daughter) and all of them are still alive, the following applies to each of them:

${\ displaystyle {\ text {compulsory part}} = {\ frac {1} {2}} \ times {\ frac {1} {\ text {number of offshoots}}}}$

Since the legal inheritance of a surviving spouse depends on the property regime of the spouses, the compulsory portion of the spouse is also dependent on the property regime. If the spouses have not concluded a marriage contract, the statutory community of profits is agreed. Through the community of gains, the statutory share of inheritance is increased by 1/4 for the gain compensation according to § 1371 BGB.

Example : Testator E dies without leaving a will. According to the rules of legal succession, his wife (married in a community of gains) receives 1/2 (1/4 according to § 1931 Paragraph 1 Sentence 1 BGB and 1/4 according to § 1371 Paragraph 1 BGB ) and the three children each receive 1 / 6th However, if E appoints one of the children as sole heir, the wife is entitled to 1/8 and also the specifically calculated gain compensation. The "lump-sum" gain adjustment, which takes place in the case of legal succession by increasing the legal portion of the inheritance by 1/4, does not apply if the spouse is disinherited; this is limited to the specific calculation of the gain in accordance with Section 1371 (2) BGB . The two disinherited children each have a right to 1/8 of the estate value (if the additional quarter of the wife is omitted, each child would be entitled to 1/4 of the estate, so each child receives half of this).

According to § 1371 Abs. 3 BGB , the spouse can also refuse the inheritance and only demand the compulsory portion instead of the additional quarter of the inheritance that he receives as a lump-sum gain compensation; in that case, the gain compensation is to be carried out according to the normal family law regulations (§§ 1372 - 1390 BGB).

Decisive for the specific amount of the compulsory portion is the assets of the testator at the time of the inheritance, whereby the net estate (net estate) is decisive, d. H. Any existing liabilities are to be deducted.

Unlike the heir, the person entitled to a compulsory portion excluded by a disposition does not become the legal successor of the testator and does not become a member of the community of heirs. Rather, he only has a monetary claim against the heir § 2303 Paragraph 1 Clause 2 BGB .

A compulsory portion that has arisen is inheritable and transferable to third parties. A creditor can only seize it if it is recognized by contract or if the person entitled to a compulsory portion sues for the claim.

Granting of an inheritance or legacy

If the person entitled to a compulsory portion is appointed as an heir by disposition due to death, but his portion of the inheritance is smaller than his compulsory portion, he can demand from his co-heirs the value of half of the statutory portion of the inheritance as a monetary claim in accordance with Section 2305 BGB. If the inheritance assigned to him (or his appointment as sole heir) is restricted by an order of execution, division rules or subsequent inheritance, if he is only assigned to subsequent heirs or if his inheritance is adversely affected by an order of legacies or conditions, the person entitled to compulsory portion can use his restricted or adversely affected portion or inheritance. turn down the intended subsequent inheritance within the disclaimer period and demand his full compulsory portion ( § 2306 BGB). If the person entitled to a compulsory portion is given a legacy, he can reject the legacy and request his full compulsory portion, or he can accept the legacy, which is then offset against the value of his compulsory portion ( Section 2307 BGB).

Calculation of the compulsory portion

The calculation of the compulsory portion is based on the value of the estate at the time of death. The testator's declaration of the value is irrelevant ( § 2311 BGB). The heirs have to provide the person entitled to a compulsory portion according to § 2314 BGB on request with information about the existence of the estate (including liabilities and donations) by submitting an orderly and clear list. The person entitled to a compulsory portion can also request that this register be drawn up by a notary , who then has to determine the estate himself (e.g. by obtaining excerpts from the land register and commercial register, bank information and on-site inspection). The person entitled to a compulsory portion is to be consulted on request to compile the directory. The heirs' duty to provide information even applies to the social welfare institution who requests information from transferred law ( Section 93 SGB XII), even if the transfer notice is contested.

Crediting of donations

The beneficiary must allow himself to be credited to his compulsory portion whatever has been sent to him among the living by the testator with the express provision that it is to be credited to the compulsory portion ( § 2315 BGB), so-called crediting provision . The determination of credit by the testator must be made by means of a declaration of intent , which must be sent to the person entitled to the compulsory portion before or upon execution of the generous donation (e.g. donation). A subsequent crediting provision or a crediting provision in the will is not permitted, so that what is received cannot be taken into account.

Compulsory portion supplement

In order to prevent the compulsory portion from being eroded by gifts to third parties during one's lifetime, Section 2325 of the German Civil Code (BGB) stipulates that in such cases the person entitled to the compulsory portion can request the heir to add to his compulsory portion (claim to supplement the compulsory portion). As a result, it is placed as if the gifted assets were still in the estate .

A donation is given less and less consideration, the more time has passed since the donation, cf. Section 2325 (3) BGB:

Time of donation	Consideration in%
in the 1st year before the inheritance	100
in the 2nd year before the inheritance	90
in the 3rd year before the inheritance	80
in the 4th year before the inheritance	70
in the 5th year before the inheritance	60
in the 6th year before the inheritance	50
in the 7th year before the inheritance	40
in the 8th year before the inheritance	30th
in the 9th year before the inheritance	20th
in the 10th year before the inheritance	10
in the 11th year before the inheritance	0

In the case of gifts between spouses, the period does not begin until the marriage ends, Section 2325 (3) BGB.

An example: E gave his wife a house worth 400,000 euros in 1990. The marriage was divorced in 2002. E. dies in 2010. The deadline only ran from 2002.

According to the rulings of the BGH, the period does not begin even if the testator reserves the right to usufruct the gift. The same applies if the testator transfers his apartment to the entire apartment subject to the free lifelong right of residence.

According to Section 2327 of the German Civil Code (BGB), gifts that the person entitled to a compulsory portion himself received from the testator are to be offset against his or her entitlement to a compulsory portion, regardless of any imputation provision. In the case of the actual (so-called ordinary) compulsory portion (based on the inheritance actually existing in the event of inheritance), donations received are only to be taken into account if this was arranged when the gift was given, see above.

Insofar as the heir is not obliged to fulfill the compulsory portion supplement claim, for example because the actual estate is not sufficient to fully meet the compulsory portion supplement claim, the person entitled to the compulsory portion can refer to the recipient of the gift according to § 2329 BGB.

Statute of limitations

A limitation period of three years applies to the compulsory portion claim in accordance with § 195 BGB . The period begins to run at the end of the year in which the person entitled to a compulsory portion becomes aware of the inheritance and the impairing disposition of death as well as of the person of the heir or would have to become aware of it without gross negligence. The person entitled to the compulsory portion regularly (only) obtains this knowledge by receiving the protocol of the opening of the will and a copy of the will from the probate court. Without obtaining knowledge, the claim expires no later than 30 years after the inheritance, Section 199 (3a) BGB. According to the case law of the Federal Court of Justice, the beginning of the statute of limitations for the compulsory portion does not depend on the knowledge of the person entitled to compulsory portion of the composition and value of the estate. The limitation period does not start again if the person entitled to a compulsory portion only learns later that another item belongs to the estate.

In principle, the same applies to the claim to supplement the compulsory portion, although knowledge of the impairing donation must also be added for the start of the limitation period. However, if, as an exception, the heir and the recipient of the gift are not liable for the supplement to the compulsory portion (especially if the other legacy is poor), a three-year limitation period applies to the liability of the gift recipient, starting with the date of inheritance.

For inheritance cases before January 1, 2010, special features must be taken into account when calculating the limitation periods due to transitional provisions for the reform of inheritance law.

Reform of the mandatory portion under inheritance law

Since January 1, 2010, the changes to the statute of limitations, claims for supplementary compulsory portions and reasons for withdrawing compulsory portions have been in effect under the Inheritance Law Reform Act I. For inheritance cases before January 1, 2010, however, the earlier law is largely relevant.

For inheritance claims that were not statute-barred by January 1, 2010, the new statute of limitations apply within the framework of Art. 229 § 23 EGBGB , unless the statute of limitations expires earlier based on the calculation of the previous law.

literature

Jörg Mayer u. a. (Ed.): Manual of the right to compulsory portion. 4th edition Zerb-Verlag, Bonn 2017, ISBN 978-3-95661-072-1 .
Gerhard Schlitt, Gabriele Müller (Hrsg.): Manual compulsory portion law . 2nd edition Beck-Verlag, Munich 2017, ISBN 978-3-406-68785-3 .

Individual evidence

↑ BVerfG , decision of April 19, 2005, Az. 1 BvR 1644/00 and 1 BvR 188/03, full text .
↑ BGH , judgment of January 19, 2011, Az. IV ZR 7/10 = BGHZ 188, 96 = NJW 2011, 1586.
^ BGH, judgment of February 27, 1985, Az. IVa ZR 136/83, full text = BGHZ 94, 36; BGH FamRZ 1964, 86.
↑ ^a ^b OLG Düsseldorf , decision of March 2, 2011, Az. I 3 Wx 214/08, full text = ZEV 2011, 310.
↑ Prot., 2nd Com., P. 7583.
↑ § 771 ABGB ; Kuhn ZEV 2011, 288.
↑ OLG Hamm , judgment of October 25, 2011, Az. I-10 U 36/11, full text .
↑ OLG Munich , judgment of July 14, 2016, Az. 23 U 363/16, full text .
↑ https://ratgeber.ruby-erbrecht.com/schuldner-des-pflichtteilsergaenzungsanspruchs/
↑ BGH, judgment of January 16, 2013, Az. IV ZR 232/12, full text .
↑ Inheritance Law Reform Act I Federal Law Gazette 2009 I p. 3142 .

[1] BVerfG , decision of April 19, 2005, Az. 1 BvR 1644/00 and 1 BvR 188/03, full text .

[2] BGH , judgment of January 19, 2011, Az. IV ZR 7/10 = BGHZ 188, 96 = NJW 2011, 1586.

[3] BGH, judgment of February 27, 1985, Az. IVa ZR 136/83, full text = BGHZ 94, 36; BGH FamRZ 1964, 86.

[OLGD-4] OLG Düsseldorf , decision of March 2, 2011, Az. I 3 Wx 214/08, full text = ZEV 2011, 310.

[5] Prot., 2nd Com., P. 7583.

[6] § 771 ABGB ; Kuhn ZEV 2011, 288.

[7] OLG Hamm , judgment of October 25, 2011, Az. I-10 U 36/11, full text .

[8] OLG Munich , judgment of July 14, 2016, Az. 23 U 363/16, full text .

[9] ttps://ratgeber.ruby-erbrecht.com/schuldner-des-pflichtteilsergaenzungsanspruchs/

[10] BGH, judgment of January 16, 2013, Az. IV ZR 232/12, full text .

[11] Inheritance Law Reform Act I Federal Law Gazette 2009 I p. 3142 .