Prenuptial agreement - community of property
May 23, 2010 | 30,00 EUR | answered by Dr. Dr. Danjel-Philippe Newerla
We have a question regarding inheritance law. We have been married since 1996, childless, and have not yet established a marital agreement. We want to ensure that in the event of one partner's death, the entire shared estate is available to the surviving partner at 100%. As far as we understand, without a marital agreement we are in a community of accrued gains, so that in the event of death, part of the inheritance goes to the closest relatives in the 1st degree, and if they are not present (which applies to us, as we are childless), to the heirs in the 2nd degree, meaning the deceased partner's parents or their descendants. Is it correct that this can be prevented by establishing in a marital agreement the status of a continued community of property, so that in the event of one partner's death, the shared estate goes to the surviving partner? If so, what further consequences arise from the continued community of property?
Dear inquirer,
Thank you for submitting your inquiry.
Yes, you are absolutely right. Unless otherwise specified in a marriage contract, the principle of community of accrued gains applies.
According to §§ 1371, 1931 BGB, the surviving spouse inherits half against first-order heirs (the children) and ¾ against second-order heirs.
Through a testamentary provision, it is possible for the surviving spouse to become the sole heir. However, neither a will nor an agreement on community of property can prevent the deceased's parents from claiming their statutory compulsory portion (cf. § 2303 II BGB).
Since it is also possible in the community of accrued gains to appoint the other spouse as the sole heir and compulsory portion claims cannot be excluded without the consent of the entitled party, you might as well retain the current property regime of community of accrued gains, at least in terms of inheritance law.
If you have any further questions, please do not hesitate to contact me.
I hope I have been able to assist you and wish you a pleasant Pentecost Sunday!
Kind regards,
Dipl.-Jur. Danjel-Philippe Newerla, Attorney at Law
Heilsbergerstr. 16
27580 Bremerhaven
kanzlei.newerla@web.de
Tel. 0471/3088132
Fax. 0471/57774
