Compulsory portion claim / Inheritance planning
June 2, 2011 | 40,00 EUR | answered by Dr. Dr. Danjel-Philippe Newerla
Dear Sir or Madam,
We have the following situation:
My husband (= EM) (many years older than me (= EF)) has 2 adult children (= A + B) from his first marriage; we have a child together (= C), our multi-family house was acquired by EM alone through a lease-purchase in 2004; with our marriage 2 years ago (legal matrimonial property regime), EM transferred 50% of this house to me (= EF) as a marital gift (notarial contract + land register entry) at no cost (acquired), we are joint debtors until full repayment in 2016; currently EM only has low income, so EF takes over the monthly installment payments (EF = main breadwinner).
What are the inheritance shares regarding the multi-family house? Can we design something in a will/inheritance contract so that A + B only receive the minimal obligatory share? To what extent does the marital gift count as a donation in a possible compulsory portion supplementation claim by A + B?
I thank you in advance for your efforts.
Dear seeker of advice,
Thank you for your inquiry. I would like to answer it as follows:
1. What are the inheritance shares regarding the MFH (multi-family house)?
Separate inheritance shares with regard to the MFH are generally not possible. Rather, a part of the MFH (i.e. the respective share of co-ownership amounting to 50%) belongs to the entire estate.
The inheritance quota is then calculated in relation to this total estate.
If your husband were to pass away, you would inherit half according to §§ 1391, 1931 of the German Civil Code (BGB), while the other half would be inherited by your husband's 3 children in equal shares according to § 1924 BGB, meaning each child would inherit 1/6.
This would be as follows in relation to the 50% share of co-ownership in the property:
You would inherit 25%, and the children would each inherit 8.33% share of co-ownership in the property.
2. Can we create a will/inheritance contract so that A+B only receive the minimal compulsory share?
Yes, for this to happen, the estate would have to be distributed in a way that does not include A and B. This would then be a formal disinheritance, which would lead to corresponding compulsory share claims according to § 2303 BGB.
I would be happy to assist you in formulating such a will. If you are interested, please feel free to contact me at the email address provided below. In the event of further engagement, I would credit you the initial consultation fee.
3. To what extent does the marital gift count as a donation in a possible compulsory share supplement claim of A+B?
Yes, it does count, as in compulsory share law, these unspecified gifts are generally treated as donations.
I hope to have provided you with an initial legal orientation and wish you much success and all the best!
In conclusion, I would like to point out the following:
The legal advice I have provided is based solely on the information you have provided. My response is only an initial legal assessment of the situation and cannot replace a comprehensive review of the facts. Adding or omitting relevant information can lead to a completely different legal assessment.
I hope that my explanations have been helpful to you. You are welcome to contact me through the follow-up option if you have any further questions.
I wish you a pleasant Friday evening!
Kind regards from the North Sea coast,
Dipl.-Jur. Danjel-Philippe Newerla, Attorney at Law
Stresemannstr. 46
27570 Bremerhaven
kanzlei.newerla@web.de
Fax. 0471/140244
Tel. 0471/140240 or 0471/140241
