Ask a lawyer on the topic of Inheritance law

Inheritance contract and §2325 of the German Civil Code

February 22, 2011 | 40,00 EUR | answered by Bernhard Müller

Dear Sir or Madam,

In 1974, our mother passed away. The existing property was divided among the heirs as follows:
Father: half
Mother's half: Father 1/2, daughter and son each 1/4

In 1983, it was stipulated in an inheritance contract that the son would immediately receive half of the undeveloped property from the father, the daughter would receive the other half with the building, and the deceased's second wife would receive the entire remaining estate after his death.

In 2005, a deed of gift was made transferring the daughter's portion with the building to her, and a right of residence was registered for the spouses, with their mutual consent.

In 2010, the deceased passed away. The wife has been living in a nursing home for 4 years and is under guardianship. The cash assets have been almost depleted, and she no longer has any use for the remaining household and possessions. Her share of the inheritance is now very small. The guardian's lawyers have claimed compulsory portions under §2325 of the German Civil Code after examining the inheritance contract from 1983.

One article of the inheritance contract states:
The parties appearing as 2) and 3) renounce the assertion of compulsory portion claims against the other heirs in the event of disclaimer of the inheritance. The participants mutually accept the waiver.

The stepmother and daughter agreed to the inheritance distribution when the contract was created, and this paragraph was meant to protect each party from any future claims.

What is your recommendation?

Bernhard Müller

Dear inquirer,

according to § 2303 II BGB, the spouse is entitled to a compulsory portion. According to § 2305 BGB, if an heir entitled to a compulsory portion inherits less than half of their statutory share, they are entitled to claim the value of the missing half as their compulsory portion. The crucial provision in the inheritance contract reads:

"waive the assertion of compulsory portion claims against the other heirs in the event of renunciation of the inheritance."

The situation of renunciation of the inheritance has not occurred, but there is simply less assets in the estate than believed at the time of the contract. Therefore, the trustee is indeed entitled to assert the right to supplementary compulsory portion under § 2325 BGB.

However, when calculating the amount, you should argue that the gifted property was encumbered with a right of residence at the time of the gift. Therefore, the value of the half of the developed land is likely to be lower due to the value of the right of residence, compared to if the property was not encumbered with the right of residence.

Furthermore, it is likely that the situation under § 2331 a BGB applies here, so you may be able to request a deferral of the compulsory portion if necessary.

Yours sincerely,

Bernhard Müller, Attorney.