Gifts in Marriage and Divorce in Germany

Under Section 516(1) of the German Civil Code (Bürgerliches Gesetzbuch, BGB), a gift is a transfer by which one person enriches another out of their own assets, with both parties agreeing that nothing is owed in return. German case law distinguishes this classic gift from a marriage-related contribution (ehebezogene or unbenannte Zuwendung). A marriage-related contribution is made for the sake of the marriage: it serves the couple’s life together and is given on the understanding that the marriage will last. When one spouse transfers a share in the family home to the other, for example, courts often treat this as an investment in the marriage rather than a gift in the classic sense.

Whether a transfer is a classic gift or a marriage-related contribution depends on the circumstances, and what matters most is the purpose behind it. Wedding presents, for example, are given for the sake of the marriage, whereas gifts on the birth of a child are intended for the child and are therefore not marriage-related contributions between the spouses.

The distinction becomes important on divorce. Between spouses, both categories are treated alike in the equalization, but they differ in how the giving spouse can reclaim the asset. The classification is particularly contentious for larger transfers, such as a share in a property or a business, where the purpose is often only disputed years after the fact.

For marriages concluded on or after January 29, 2019, German matrimonial property law generally applies if the spouses chose it or, without a choice, if their first common habitual residence after the marriage was in Germany. The rest of this page assumes that German law applies, which for international couples is not automatic. Living in Germany today, or holding German citizenship, does not by itself determine which country’s rules apply to a couple’s property.

For spouses who married, or who chose the law applicable to their property, on or after January 29, 2019, the EU Matrimonial Property Regulation (Regulation (EU) 2016/1103) generally applies in Germany. Spouses can choose the law of a country where either of them is habitually resident or of which either is a national. Without such a choice, the applicable law is determined in the following order:

1. The law of the country where the spouses had their first common habitual residence after the marriage
2. If there is none, the law of their common nationality
3. Failing both, the law of the country with which the spouses are most closely connected

For couples who married before that date and have not since made a choice of law under the Regulation, the previous version of the German conflict-of-law rules in the Introductory Act to the Civil Code (EGBGB) continues to apply (Article 229 Section 47(2) EGBGB). These rules look primarily at the spouses’ common nationality at the time of the marriage.

A couple who married and first lived abroad before moving to Germany may find that their home country’s matrimonial property regime still applies, even after many years here, because the applicable law does not change automatically when spouses relocate. Couples in this situation can, however, make a choice of law, for example in favor of German law once they are habitually resident here.

Whether a gift itself can be revoked is a separate contract law question and may be governed by yet another legal system. In an international divorce, our family law team at Schlun & Elseven Rechtsanwälte assesses which law applies at the outset. Where a foreign matrimonial property regime governs, we coordinate with partner firms abroad.

In a German divorce, gifts a spouse received from third parties, such as their parents, generally stay outside the equalization of accrued gains, while gifts between the spouses themselves generally flow into it. Dividing the couple’s assets is one of the central legal issues in any divorce. Unless the spouses have agreed otherwise in a marital agreement, German law applies the statutory property regime known as the community of accrued gains (Zugewinngemeinschaft). Despite the name, this is not a community property system. Each spouse keeps sole ownership of their own assets during the marriage. Only when the marriage ends are the gains each spouse has built up compared and equalized.

On divorce, the equalization of accrued gains follows Sections 1372 to 1390 BGB (a separate rule in Section 1371 BGB applies when the marriage ends through death). A spouse’s accrued gain is the amount by which their final assets (Endvermögen) at the end of the marriage exceed their initial assets (Anfangsvermögen) at the start (Section 1373 BGB). The spouse with the smaller gain can claim half of the difference from the other (Section 1378(1) BGB).

Under Section 1374(2) BGB, assets a spouse receives during the marriage by inheritance, in anticipation of a future inheritance, as a gift, or as a contribution from their parents to help them marry or set up independently (Ausstattung) are added to that spouse’s initial assets. In practical terms, a property or a sum of money that one spouse receives from their own parents generally stays outside the equalization. This does not apply where the transfer, in the circumstances, effectively counts as income. Any increase in the asset’s value after it was received, however, generally does count toward the accrued gain.

This privilege does not apply to transfers between the spouses themselves. The Federal Court of Justice (Bundesgerichtshof, BGH) has repeatedly held that Section 1374(2) BGB does not cover transfers from one spouse to the other, whether they are classic gifts or marriage-related contributions, and even where they are made in anticipation of a future inheritance (BGH, judgment of September 22, 2010, XII ZR 69/09). The reasoning is that the asset comes out of the other spouse’s own assets, so the marriage as a whole has not genuinely gained anything. The asset appears only in the recipient’s final assets and therefore flows into the equalization.

Section 1380 BGB adds a further adjustment. If the spouse who received a gift is also the one with an equalization claim, the value of the gift is credited against that claim where the giving spouse specified this when making the gift. If there is doubt, the law presumes that any gift worth more than the occasional gifts customary for that couple’s circumstances is to be credited. For the calculation, the value of the gift at the time it was made is added back to the accrued gain of the spouse who gave it, and the gift is then deducted from the resulting claim. In practice, this matters most where the recipient no longer has the gift at the end of the marriage, because it has been spent, for example:

During the marriage, one spouse gives the other €100,000, which the recipient spends. When the marriage ends, the giving spouse has an accrued gain of €400,000 and the recipient has none.

Without the adjustment, the recipient would benefit twice: once from the gift and again through the full equalization payment. Section 1380 BGB ensures that both spouses end up with an equal share of what was gained during the marriage.

How these rules play out in a specific case often depends on valuations and on how individual transfers are classified, which is why gifts between spouses are a frequent source of litigation. Our family law team reviews your financial situation and explains the options available to you.

A gift can only be reclaimed after separation or divorce in limited circumstances. A gift agreement imposes obligations on one side only, so once the gift has been made, the donor generally gives up all rights to it. German law does provide for the return of gifts when an engagement is broken off (Section 1301 BGB), but there is no equivalent rule for divorce. Unless the spouses have made specific provisions in a marital agreement, the statutory rules on dividing assets apply: the equalization of accrued gains and the pension rights equalization (Versorgungsausgleich). Customary gifts made out of moral duty or common decency, such as birthday or anniversary presents, cannot be reclaimed or revoked at all (Section 534 BGB).

Within these limits, the law recognizes the following grounds for reclaiming a gift.

Under Section 525(1) BGB, a gift can be made subject to an obligation (Auflage) on the part of the recipient, such as using the money for a specific purpose. Once the donor has made the gift, they can require the recipient to fulfill that obligation. If the recipient does not, the donor can demand the return of the gift to the extent that it should have been used to fulfill the obligation (Section 527(1) BGB).

If, after making the gift, the donor can no longer cover their own reasonable living costs or meet their statutory maintenance obligations toward relatives, a spouse, or a former spouse, they can demand the return of the gift under Section 528(1) BGB. The recipient can avoid returning the gift by paying the amount needed for the donor’s maintenance instead.

The claim is excluded if the donor caused their own need intentionally or through gross negligence, or if more than ten years had passed between the gift and the point at which the donor’s need arose (Section 529(1) BGB). It is also excluded to the extent that returning the gift would endanger the recipient’s own appropriate maintenance or their statutory maintenance obligations toward others (Section 529(2) BGB).

Under Section 530(1) BGB, a gift can be revoked if the recipient shows gross ingratitude toward the donor through serious misconduct against the donor or one of the donor’s close relatives. Examples include serious insults or physical abuse. The conduct must be intentional and morally reprehensible. The donor revokes the gift by a declaration to the recipient (Section 531(1) BGB). Revocation is excluded if the donor has forgiven the recipient or if one year has passed since the donor learned of the grounds for revocation (Section 532 BGB). It is also no longer possible once the recipient has died.

Where neither a statutory right nor a contractual agreement allows the gift to be reclaimed, the doctrine of frustration of the basis of the transaction (Störung der Geschäftsgrundlage) under Section 313 BGB may apply. The basis of the transaction is made up of the circumstances that both parties assumed when the gift was made. If these circumstances change fundamentally, and the parties would not have made the transfer, or would have made it differently, had they foreseen the change, the agreement can be adjusted. Where an adjustment is not possible or reasonable, the transfer can be reversed.

This route is particularly relevant for marriage-related contributions, which are made on the assumption that the marriage will last, and for gifts from parents-in-law, for example when parents help finance a home for their child and their child’s spouse. Where the spouses live in the community of accrued gains, however, the equalization generally takes precedence over a separate claim under Section 313 BGB.

Our family lawyers explain whether you can reclaim a gift and what might stand in the way. We answer your questions and represent you both in and out of court.

Spouses can protect gifts in advance through a notarized marital agreement or by building terms into the gift itself. Many disputes over gifts in divorce arise because nobody recorded what was intended when the gift was made.

Spouses can use a marital agreement (Ehevertrag), concluded before or during the marriage, to set out how gifts and other assets are to be treated if the marriage ends (Section 1408(1) BGB). They can, for example, exclude particular assets from the equalization of accrued gains, agree that certain gifts are to be returned on divorce, or modify the statutory property regime altogether. A marital agreement must be recorded by a German notary with both spouses present at the same time (Section 1410 BGB). Our lawyers advise on drafting prenuptial and postnuptial agreements, including marital agreements for business owners.

A larger individual gift can also be structured to address divorce from the outset. The donor can attach an obligation to the gift, reserve a contractual right to reclaim it if the marriage ends, or specify that it is to be credited against any future equalization claim under Section 1380 BGB. For real estate, the transfer agreement must be notarized in any case (Section 311b(1) BGB), so a right of return can be built into the same document.

Even where no formal agreement is made, a short written record of what a larger transfer was intended for, signed by both spouses at the time, can make a considerable difference if its purpose is disputed years later.

Disputes over gifts usually turn on documents and dates: who transferred what, when, and for what purpose. Our family lawyers start by reviewing the transfers made during your marriage, together with any marital agreement and notarial deeds, and assess how each one is likely to be treated in the equalization of accrued gains. On that basis, we explain the likely financial outcome, whether a gift can be reclaimed or should be defended, and represent you in negotiations and before the family court.

Some rights in this area are time-limited. A gift can only be revoked for gross ingratitude within one year of the donor learning of the grounds, so it is worth having your situation reviewed early.

At Schlun & Elseven Rechtsanwälte, we advise clients from all over the world in English, and most of our work can be done remotely, so you do not need to be in Germany to instruct us. Your matter is handled confidentially, and we are transparent about the expected costs from the outset. Have your situation reviewed by our family law team.