Gain
Gain is a term from German marriage law which , in the case of the statutory property regime of the community of gain / civil partnership , describes the increase in assets that occurred during the marriage and which is to be calculated for mutual profit compensation at the end of the marriage.
General
The statutory matrimonial property regime of the community of gains does not require a marriage contract and therefore applies with a legally binding marriage without the need for special agreements. Then the regulations on the community of gains of § § 1363 ff. BGB apply automatically . However, gain and gain compensation only play a role if the marriage / civil partnership ends. Reasons for termination are death of a spouse, divorce of the marriage, application for premature annulment of the community of gains or the change from the community of gains by means of a notarized marriage contract to the property regimes of property separation or community of property .
General calculation of gain
To calculate the gain, a distinction is first made between initial wealth and final wealth. When it comes to the concept of assets, the BGB assumes the net assets , so that debts must be deducted from the gross assets . According to Section 1374 (1) BGB, initial assets are the net assets brought into the marriage by a spouse at the start of the marriage and belonging to him, final assets are the net assets of a spouse at the time of termination ( Section 1375 BGB). If the debts are higher than the gross wealth, this also leads to a negative value since the property law reform of September 1, 2009; Since then, the initial or final assets are no longer set to zero (Section 1374 (3) BGB, Section 1375 (1) sentence 2 BGB). A gain exists if - in the case of positive assets - the final wealth is greater than the initial wealth (formula: additional gain = final wealth - initial wealth). Compensable gain is the positive result between the beginning and end of the asset. The profit compensation is made by comparing the assets of both spouses. The spouse with the higher profit is obliged to compensate the other spouse.
The calculation of the value of assets is based on the date of the start of the marriage when determining the initial assets. According to Section 1376 (1) BGB, the calculation of the initial assets is based on the value that the assets to be added had at the time of acquisition. The same applies to the valuation of the final assets, here the point in time at which the property regime ends is decisive (Section 1376 (2) BGB). If, for example, one of the spouses owned a relatively worthless piece of property when entering the property regime, this value must be used to calculate the initial assets, even if the same property has become more valuable upon termination of the property regime.
The initial assets must also be indexed after determination so that any loss of purchasing power that has occurred is compensated for. The indexing is based on a precisely defined conversion formula.
special cases
Determining the gain would be easy if it could be completed using the above formula. In the case of profit sharing, it does not initially depend on whether and in what way the spouse requesting the compensation contributed to the generation of the profit. However, the legislature has created complications because it allows exceptions that are intended to contribute to a fairer compensation. In addition, in § 1374 Abs. 2 BGB assets are listed that are to be added to the initial assets, although they were only acquired during the marriage. This provision stipulates that the affected assets are to be treated as if they had already been brought into the marriage. By adding them to the opening balance, they are not included in the profit equalization and nevertheless place the question in the foreground as to whether a spouse contributed to the creation of a specific profit.
This so-called “privileged acquisition” includes inheritances , gifts and trousseau , ie personal gifts to a specific spouse. A “privileged acquisition” also exists if the acquisition is made with consideration for a future right of inheritance, but has been given the legal form of a purchase contract for certain reasons. The exceptions to the general principle of equalization of all capital gains achieved in the marriage, standardized in Section 1374 (2) of the German Civil Code, have in common that the spouse of the purchaser of such an asset did not contribute anything to its "privileged acquisition" and he therefore did not contribute to this acquisition via the later one Participate in the equalization of profits. These personal gifts should remain undiminished for the beneficiary spouse.
Since this is an exhaustive list , all other capital gains do not belong to the opening balance, especially not the lottery winnings . Even pain and suffering or compensation payments are regularly balancing efficient gain. Benefits that one spouse makes to the other are not covered by Section 1374 (2) BGB, regardless of whether they are gifts or unnamed benefits. Because gifts and gifts that one spouse gives to the other represent a compensatory gain.
Donations are not considered a “privileged acquisition” even if they are income within the meaning of the last half-sentence in Section 1374 (2) BGB. If a spouse receives such benefits not for asset formation but for consumption purposes, they are not added to the initial assets and are a gain. A typical example are cash donations from the parents of a spouse for a vacation trip for the spouses. These donations are used for consumption purposes and not to accumulate wealth and are compensable gains.
Flat-rate gain compensation
In the event of the termination of the property regime due to the death of a spouse or partner, a flat-rate gain compensation takes place. The inheritance quota of the surviving spouse or partner is increased by a quarter, whereby it is irrelevant whether there was actually a gain ( § 1371 BGB).
