Adopting an Adult in Germany

First and foremost, adopting an adult is intended to symbolize the close parent-child relationship between the adopting person (the adopter) and the adopted person (the adoptee). The adoption of adults was introduced in 1975, when German adoption law was comprehensively reformed. This form of adoption is regulated in the German Civil Code (BGB, Bürgerliches Gesetzbuch) in Section 1767 et seq. BGB. Under Section 1767 para. 1 BGB, the adoption of an adult must be morally justified. This may be the case, for example, if the adult’s parents are deceased and the adult is living with another family member, or where the adult has a distant relationship with their parents while maintaining a closer relationship with the adopting person.

In addition to strengthening the relationship between the parties, the motivation for an adult adoption may also lie in pragmatic considerations, for example, advantages in inheritance and tax law. Such reasons, however, must not be the determining factor.

The adoption must be morally justified under Section 1767 para. 1 BGB. Such a justification is generally assumed where a parent-child relationship already existed between the adopting and the adopted person.

Case law shows that courts tend not to consider an adoption to be morally justified if there is a fundamental suspicion that financial reasons are the primary motivation, and such an application will not usually be granted. In a 2014 ruling, the Higher Regional Court of Stuttgart denied an aunt permission to adopt her nephew because the court found that the reason for the adoption, despite the close family relationship, was primarily financially motivated. The court emphasized that the nephew had a healthy relationship with his own parents and also lived with them. This illustrates that the presence of a third living parent can be an aggravating factor in adoption proceedings.

Proof of a close relationship between the adopter and the adoptee can be established if the following conditions are met:

• a close personal relationship over a long period,
• a parent-child-like age difference between the persons concerned,
• a serious intention to take care of each other in the event of financial or health problems.

It is not necessary to be related to adopt an adult, and this is the situation in most such cases. If a person wishes to adopt someone who is not a relative, there is no legal objection to this, provided the factors above are proven.

The first step in adopting an adult in Germany is to submit a notarized application to the local family court under Section 1768 BGB. The application must:

• explain the reasons for the adoption, following the criteria described above,
• include declarations of consent from both sides, the adopter and the adoptee, and
• include the consent of the spouse, if applicable.

The children of the adoptive parent and of the adoptee will also be heard as part of the proceedings. We recommend consulting an experienced German family lawyer to increase the chances of a successful adoption procedure and to help explain the reasons for the adoption clearly. At Schlun & Elseven, our family law team ensures that your application complies with the law and that the parent-child relationship is adequately explained.

The family court will also take into account whether the adoptive parent already has biological children. Since these children are involved in and heard during the proceedings, it is advisable to inform and involve them sufficiently before an application is filed.

Adopting an adult in Germany involves several practical requirements that are especially relevant if you or the person you wish to adopt live outside Germany, or are not fluent in German. This is separate from the international adoption procedure under the Hague Adoption Convention, which applies specifically to the international adoption of minors.

The application itself can only be made by the adopter in person. It cannot be submitted through a representative, and it must be notarized in person before a German notary. The family court will also personally hear both the adopter and the adoptee as part of the proceedings.

If either party is not a German national, or if key documents such as birth certificates or proof of marital status were issued abroad, these documents will generally need a certified translation prepared by a sworn or publicly appointed translator. Depending on the country that issued the document, an apostille or consular legalization may also be required before the German court will accept it, and the exact combination depends on the issuing country and the discretion of the authority involved.

Where the adopter and the adoptee hold different nationalities, German conflict-of-laws rules can also require that the adoption be assessed under more than one country’s law, which may mean a second, parallel application is necessary.

If the adoption needs to be recognized outside Germany, whether for inheritance, residence, or other legal purposes, recognition within the European Union generally follows the same mutual-recognition principles that apply to other family law judgments across member states. Recognition in a non-EU country depends instead on that country’s own law and any relevant bilateral treaty.

Because document requirements, cross-nationality applications, and recognition abroad all depend on the specific countries involved, we recommend discussing your situation with our family lawyers early in the process.

German law generally provides that the rules for adopting minors also apply to adopting adults (Section 1767 (1), (2) BGB). However, the two forms of adoption differ in several key respects.

Unlike adopting a minor, adopting an adult generally does not change the adoptee’s relationship with their own relatives. The legal relationship with the adoptee’s existing family remains unchanged, including their relationship to other family members such as aunts or uncles. Compared to the adoption of a child, the adoption of an adult is therefore regarded as a weaker form of adoption under German law.

Because this form of adoption does not affect the adoptee’s existing family relationships, the adopting person is also not legally connected to the adoptee’s family. For spouses, this is regulated in Section 1770 (1) BGB, which provides that neither a legal relationship between the spouse of the adopting person and the adult, nor one between the spouse of the adopted person and the adopting person, is established. The consent of the other spouse is also required if only one spouse adopts an adult under Section 1749 (1) BGB.

Adoption is generally associated with establishing a new family relationship while simultaneously dissolving the relationship with the biological or previous family. This complete severing of ties with the previous family is the consequence of a strong adoption, or full adoption, which German law did not initially provide for:

The law only recognizes adoption with minor legal effects. The child’s relationship to their previous relatives, and the rights and duties arising from it, remain unaffected (Section 1764 BGB). The parents only lose parental authority and the right to communicate with the child; the previous relatives’ duty of maintenance remains in place and is only superseded by that of the adoptive parent (Section 1766 BGB). The child remains subject to the maintenance obligations towards their relatives, and the mutual right of succession is not affected either. Even where the child’s actual relationships with their previous relatives have been completely severed, the child remains bound to their previous family by rights and obligations that may become relevant at any time. (Bundestag printed paper 7/3061 p. 19)

The decisive difference between strong and weak adoption is therefore whether the previous family relationships continue. In a weak adoption, the adopted adult’s previous family relationships are maintained; in a strong adoption, they lapse.

Weak adoption is the norm for the adoption of adults, while strong adoption is the norm for the adoption of minors. Under Section 1770 BGB:

• the effects of the adoption of an adult do not extend to the relatives of the adopter, and the spouse or life partner of the adopter does not become related to the adoptee, nor does the spouse or life partner of the adoptee become related to the adopter;
• the rights and duties arising from the adopted person’s family relationship, and that of their descendants, to their relatives are not affected by the adoption unless the law provides otherwise; and
• the adopter is obliged to provide maintenance to the adoptee and the adoptee’s descendants before the adoptee’s natural relatives.

Through the adoption, the adopted adult therefore only acquires a relationship with the adoptive parents themselves, not with their relatives. This has implications, for example, for inheritance law. Under the rules of legal succession, the adopted adult is not inherited by the parents or siblings of their adoptive parent, but exclusively by the adoptive parents themselves. In return, the rights and duties arising from the relationship established by descent remain in force.

In exceptional cases prescribed by law, an adult can also be fully adopted; see Section 1772 BGB.

The inheritance and tax advantages of adopting an adult are considerable. Under Section 16 of the Inheritance and Gift Tax Act (Erbschaftsteuer- und Schenkungsteuergesetz, ErbStG), an adopted adult is treated as a biological child for inheritance and gift tax purposes, and therefore receives a tax-free allowance of up to €400,000, rather than being classified merely as a distant relative or non-relative. Nieces and nephews, for example, are only entitled to an allowance of €20,000 under Section 16 para. 1 no. 5 ErbStG. These figures form part of the broader system of German tax classes and allowances that determines inheritance tax liability more generally.

This effect is particularly clear in the adoption of grandchildren. As grandchildren, they are only entitled to their own, lower allowance of €200,000 (Section 16 para. 1 no. 3 ErbStG). If a grandchild is adopted as an adult by their grandparent, they move into the tax position of a child and receive the higher allowance of €400,000.

Adopting an adult, whether a distant relative or a close friend, therefore plays a role in practice particularly where a family with no children of their own wishes to pass on their wealth to another person.

Courts are generally aware that tax advantages often play a significant role in these cases. Under existing case law, however, an application is not rejected solely because tax motives are also present. What matters is that the personal relationship remains the primary consideration, and the documents submitted to the court must clearly show that the adoption is sought primarily because of a particularly close relationship between the adopting and the adopted person. In practice, this can be difficult to demonstrate.

Because courts may reject an adoption that is motivated purely by tax considerations, the way the application is formulated is of particular importance. Our lawyers at Schlun & Elseven help you present the personal relationship in a compelling and comprehensible way, while safeguarding your inheritance and tax law objectives.