Ask a lawyer on the topic of Inheritance law

Prevention of exclusion of descendants through renunciation of inheritance/partition in a marriage contract

October 31, 2009 | 40,00 EUR | answered by Andreas Scholz

My wife and I entered into a notarial marriage contract at the beginning of our marriage in 1999, which includes, among other things, the following provision: "We mutually waive our rights of inheritance and compulsory portion and mutually accept this waiver." At the time of the contract, we were not aware that this would also exclude descendants. I have children and grandchildren from a previous marriage, whom my wife now wants to include in her will. She herself has no children of her own. Can my wife include my children or grandchildren in her will despite the above provision in our marriage contract, or do we need to amend our marriage contract accordingly? Is an amendment of the existing contract possible, or does it need to be revoked and a new one signed? What could the new text be, which only refers to our mutual waiver and excludes my descendants from the waiver?

Andreas Scholz

Dear inquirer,

The clause you mentioned should be understood as both of you waiving your statutory spousal inheritance rights. This does not exclude any descendants.

If your wife were to pass away, your statutory spousal inheritance rights would be forfeited due to the arrangement. This would result in the estate being distributed among the remaining descendants of your wife in accordance with statutory succession.

Therefore, your wife can easily include your children and grandchildren in a will. In the event of her passing, they would then inherit as per the testamentary appointment.

There is no need to enter into a termination agreement.

I hope this information has been helpful. If you have any questions, please feel free to ask.

Best regards,

Andreas Scholz, Attorney