Ahead
In German inheritance law, the advance is a legal legacy for household items and wedding gifts, which the surviving spouse - if he is appointed as the legal heir - is granted in addition to his inheritance ( § 1932 BGB ).
The advance should enable the surviving spouse to continue the common household and preserve their personal sphere. Accordingly, the advance is excluded if the marriage is divorced.
As household items come z. B. Consider furniture, household appliances, televisions, etc., the family car (if not mainly used for work), also carpets and pictures. The value of the items is not decisive.
The surviving spouse is only entitled to the household items in full if there are no descendants (children, grandchildren, etc.) of the deceased as further legal heirs, otherwise only if the surviving spouse needs these items to run an appropriate household ( Section 1932 para . 1 sentence 2 BGB). In this case, the surviving spouse can also claim an appropriate share of any higher value items.
The advance is only regulated in the case of legal succession. However, the testator is free to either expressly apply the advance to the spouse by means of a disposition due to death ( will or inheritance contract ) or to appoint the spouse as heir, but to withdraw the advance or, if necessary, individual items belonging to it, namely through corresponding legacies or division orders.
For the calculation of any claims to a compulsory portion of the descendants or parents of the testator, the advance due to the spouse is not taken into account - however, according to case law, only if the spouse is the legal heir ( Section 2311 (1) sentence 2 BGB). It can therefore make sense for a surviving spouse who has been appointed heir by will, to refuse the inheritance as the appointed heir and to accept it as a legal heir - which is permissible ( Section 1932 (1) BGB).
For registered life partners , Section 10 LPartG contains the same provisions on the advance. For other unmarried partnerships, however, there is no entitlement to advance payment.
Tax law
In tax law, the advance is seen as a legacy-equivalent acquisition due to death ( Section 3 I No. 3 ErbStG ). Besides the so-called thirtieth, it is the only legacy created by law.
Outside of the above-mentioned § 3 ErbStG , the advance in the inheritance tax law is not explicitly taken into account. However, in § 13 I ErbStG there is a factual tax exemption on household effects, linen and clothing. This comes close to the sense and purpose of the advance and ensures that the functional budget is not impaired by a tax burden. Wedding gifts are not preferred in the inheritance tax law. The factual exemption applies to persons in tax class I up to a total value of € 41,000. For people in tax classes II and III, the tax exemption is limited to € 12,000.
