The legislation of most countries in the world provides for two types of succession: statutory succession and succession by will. Under statutory succession, children, spouses, parents, grandchildren, siblings and other relatives are entitled to a share of the estate in a specific order of priority. Succession by will presupposes the existence of a will – that is, a disposition by which the testator disposes of their assets in the event of death; under German law, it can be handwritten and signed by the testator (§ 2247 BGB) or made before a notary (§ 2232 BGB). On this basis, all or part of the testator’s assets may be left to one or more persons, regardless of whether they belong to the circle of statutory heirs, and also to the state or other legal entities. The principle of testamentary freedom (Testierfreiheit) thus gives the testator the right to dispose of their assets at their own discretion – including the option of excluding one or all of the statutory heirs from the succession.
Practice shows that statutory heirs who learn that the deceased made a will in which they were not included often react with resignation, assuming that nothing more can be done in such a case. However, the law frequently provides that certain groups of persons can claim a compulsory share (Pflichtteil) of the estate even if they were not appointed as heirs in the will.
Amount of the compulsory share
Under § 2303 BGB, the compulsory share amounts to half the value of the statutory share of the inheritance that the heir would have been entitled to without the will.
Under Art. 1149 of the Civil Code of the Russian Federation, for example, the minor children or children unable to work of the deceased, their spouse and parents who are unable to work and – under certain conditions – their dependants who are unable to work inherit, regardless of the content of the will, at least half of the share they would have received under statutory succession (compulsory share). Similar provisions can be found in Art. 1241 of the Civil Code of Ukraine (half of the statutory share for minor children and adult children unable to work, the spouse unable to work and parents unable to work) and in Art. 1069 of the Civil Code of the Republic of Kazakhstan.
For everyone inheriting under German law, however, we would particularly like to point out that under § 2303 of the German Civil Code (Bürgerliches Gesetzbuch, BGB), the descendants and spouse of the deceased and – only if there are no descendants (§ 2309 BGB) – the parents who have been excluded from the succession by will are entitled to the compulsory share regardless of their ability to work; the same applies to a registered life partner (§ 10(6) LPartG).
Viktoria (name changed) became a client of our firm. Born in the Russian Federation, she had moved to Germany many years earlier with her parents and her older brother as a late repatriate (Spätaussiedlerin). Some time after the move to the Federal Republic, Viktoria’s parents divorced, and soon afterwards her father Sergei (name changed) started a new family, from which two more sisters of Viktoria were born. Her relationship with her father’s new family was fairly even, but no particularly close bond developed between the sisters. Nevertheless, our client continued to stay in close contact with her father and visited him regularly, even after he had moved to another city with his family.
Time passed, and by the time Viktoria learned of her father’s death, she was already raising three teenage sons of her own. Although her father’s health had deteriorated considerably in recent years and he was often ill, the news of his death still hit Viktoria very hard. When she offered her father’s wife, Elena (name changed), her help in organising the funeral, our client received a rather curt refusal; Elena also stated that she did not wish to have any further contact with Viktoria.
About a month after her father’s death, Viktoria received a letter from the probate court (Nachlassgericht) informing our client, as a statutory heir, that two days before his death Viktoria’s father had made a will leaving his entire estate to his wife Elena. Unfamiliar with the finer points of the law, our client initially assumed that, in view of the will, she was no longer entitled to anything. One circumstance, however, puzzled her: her father had complained to her for some time that his marriage to Elena had failed, and had even taken legal advice with a view to divorcing Elena in the future. And now, two days before his death, he had made a will under which his entire estate was to pass exclusively to his wife. This seemed strange to Viktoria, so she turned to our firm to have the situation clarified.
Our lawyer listened carefully to Viktoria and first explained to her that, under German law, as the daughter of the deceased she was entitled to the compulsory share, even though her father had stipulated in his will that his entire estate should pass exclusively to his wife Elena. § 2303 BGB provides that the compulsory share amounts to half the value of the statutory share of the inheritance.
The lawyer also informed our client that he could file a corresponding application with the probate court to inspect the file. Since Viktoria also had doubts as to whether her father had actually initiated divorce proceedings, the lawyer suggested contacting Sergei’s lawyer in order to obtain the necessary information.
Pleased with this information, Viktoria instructed our lawyer accordingly, whereupon he sent a request to the court and an official letter to the lawyer of our client’s father.
After receiving copies of the file, the lawyer was able to show Viktoria the will, which her father had written by hand, which had been opened by the probate court and of which a German translation was available. After carefully examining the document, our client confirmed that it had indeed been written by her father, so there was no reason to challenge its validity.
The lawyer emphasised, however, that Viktoria was entitled to the compulsory share. A person entitled to the compulsory share does not become an heir but has a monetary claim against the heir (§§ 2303, 2317 BGB). To calculate it, she can demand from the heir information on the assets of the estate (§ 2314(1) sentence 1 BGB), a notarial inventory of the estate (§ 2314(1) sentence 3 BGB) and a valuation of the estate assets (§ 2314(1) sentence 2 BGB); the costs are borne by the estate (§ 2314(2) BGB). The compulsory share claim becomes time-barred after three years (§§ 195, 199 BGB).
Some time later, the lawyer instructed by Sergei stated in an official letter that Viktoria’s father had never filed a petition for divorce. However, several years before Sergei’s death, the spouses had signed a notarised agreement stating that they were living apart and that, from the date of signing, the matrimonial property regime of separation of property (Gütertrennung) would apply – meaning that each spouse could freely dispose of their own assets; it also stipulated that, in the event of a divorce, assets acquired after the signing of this agreement would not be divided between the spouses. The most important point to which the lawyer drew our client’s attention, however, was that the spouses had also mutually waived their statutory share of the inheritance, including the compulsory share. Viktoria was therefore able to claim a larger share of the estate, as Elena was excluded from statutory succession by the waiver of inheritance (Erbverzicht, § 2346 BGB) and is not counted when calculating the compulsory share (§ 2310 sentence 2 BGB).
In order to calculate the share of the estate due to our client, our lawyer sent Elena a formal request to provide information on all assets belonging to the estate (both assets and liabilities).
After receiving the corresponding information from Elena, our lawyer asked Viktoria to examine the document carefully to establish whether all assets had been included. The lawyer also asked our client to try to remember whether her father had made any substantial gifts, since in such a case there may be an additional claim to supplement the compulsory share (Pflichtteilsergänzungsanspruch), taking into account the value of the gifts made by the deceased.
Viktoria told the lawyer that the document submitted by Elena did not take into account the sum of a life insurance policy payable on death (Todesfallversicherung), which the insurer was to pay out to the family. Her father had told her that he had been insured for a considerable sum. In addition, according to our client, gifts totalling €15,000 that Sergei had made during his lifetime had not been taken into account.
For this reason, our lawyer sent a further request to Elena’s representative asking for the scope of the estate to be specified. In agreement with our client, the lawyer also demanded that the value of the assets (house, vehicles, etc.) be determined by an expert (§ 2314(1) sentence 2 BGB). He further explained that a life insurance policy with a named beneficiary does not form part of the estate (§§ 330, 331 BGB), but is generally taken into account at its surrender value in the claim to supplement the compulsory share (§ 2325 BGB; BGH, judgment of 28.04.2010 – IV ZR 73/08). Gifts are taken into account in full only within the first year before the succession, and one tenth less for each further year (§ 2325(3) BGB).
After the valuation had been carried out and the inventory of assets belonging to the estate had been corrected, it turned out that the total value of the estate was not €170,000.00, as previously stated by Elena, but almost €350,000.00. As Elena is not counted, Viktoria’s statutory share alongside her three siblings was 1/4, and her compulsory share therefore 1/8. Under German law, our client was thus entitled to around €44,000 (1/8 of €350,000 = €43,750). The life insurance and the gifts were taken into account in the claim to supplement the compulsory share.
On Viktoria’s behalf and on her instructions, our lawyer issued a legally sound demand for payment, under which Elena was required to transfer this amount to our client’s account within a set deadline. Had this lawful demand not been met, Viktoria would have been entitled to seek legal protection before the courts.
Elena, however, complied with Viktoria’s demand within the deadline, so the inheritance matter was successfully resolved.
The case from our firm’s practice described in this article clearly shows that you should seek legal assistance in good time on all legally significant matters, as you may sometimes not even be aware of the rights the law grants you and the ways of enforcing them. Legal advice helps to calculate the claim correctly and to enforce it.
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