A dividing device can by of the Civil Code of the testator in the will be available when more than one person heirs are. With the division order, the testator makes an order in the will or inheritance contract as to how one or more objects of the estate should be distributed among the co-heirs during the dispute .
The division order does not constitute a legacy according to § ff. BGB. It does not affect the inheritance quotas. If the value of an assigned item is higher than the inheritance quota of the intended person, there is an obligation to compensate the co-heirs . With the pitch arrangement, none of the co-heirs is preferred.
The division order does not directly bring about a transfer of ownership to the co-heirs in question, but justifies claims under the law of obligations between the co-heirs to undertake a corresponding dispute.
The heirs can mutually override the division order.
Differentiation from the previous legacy
If the testator wants to assign individual objects of the estate (e.g. a house or a car) to one of the co-heirs, he can do this by means of a division order or prior legacy according to BGB. While the co-heir in question should not be preferred in terms of value in the division arrangement, he receives the object intended for him in advance in the case of the pre-bequest, i.e. before the division of the remaining estate. Example: If the two heirs have a 1/2 share of the inheritance each and if the estate is worth 100,000 euros, donating a car worth 20,000 euros to one heir leads to the following differences: - If there is an order for division, heir A receives the car worth 20,000 euros plus 30,000 euros and Erbe B 50,000 euros. - If, on the other hand, there is a prior legacy, Erbe A receives the car in advance and the remaining 80,000 euros are divided equally between the heirs. So everyone receives 40,000 euros. This means that heir A has an advantage (20,000 and 40,000 euros) and heir B at a disadvantage (only 40,000 euros).
As the example shows, the previous legatee is objectively preferred to the addressee of the division order and the testator must want this too.
- A prior legacy can be asserted prior to the division of the estate, a division order only in the context of the dispute.
- The previous legatee can refuse the legacy and accept the inheritance or, conversely, refuse the inheritance and accept the previous legacy. With the division arrangement, one only has the option of accepting the inheritance with division arrangement or rejecting it altogether.
- A prior legacy can become binding within the framework of a spouse's will or inheritance contract, a division order cannot. The surviving spouse can therefore no longer change an advance legacy, but can change a division order that can also be decreed subsequently by the surviving spouse.
Like a free inheritance dispute, division orders are irrelevant for determining the share of the individual heirs in the estate (acquisition by inheritance, Section 3 (1) No. 1 ErbStG). The net value of the estate determined in accordance with the tax valuation regulations must therefore also be assigned to the heirs in the case of division orders based on the inheritance shares. The special regulations for division orders and free inheritance disputes in the case of tax exemptions (e.g. § 13c ErbStG) or the tax relief according to § 19a ErbStG only lead to a change in the assessment basis of the tax exemption or tax relief and not to a change in the allocation of the objects of acquisition individual heirs.
- Guideline 3.1 (1) Paragraph 1 Sentences 3 to 5 of the Inheritance Tax Guidelines (ErbStR) 2011