What happens to your business if your marriage ends in divorce? For business owners in Germany, the answer depends largely on whether they have a prenuptial agreement, or prenup. Without one, any value your company gains during the marriage can give your spouse a claim for payment, and the money may have to come from the business itself.
A prenuptial or postnuptial agreement (Ehevertrag) can limit this risk, whether it is signed before the wedding or later in the marriage. To work as intended, it must fit the company’s articles of association or partnership agreement (Gesellschaftsvertrag), which sometimes require shareholders to sign one.
At Schlun & Elseven Rechtsanwälte, our family lawyers draft and review prenuptial agreements for shareholder-managing directors, family businesses, and the self-employed, from the initial assessment through to notarization. Much of the preparation can be handled remotely.
What Happens to Your Business Without a Prenuptial Agreement?
Without a prenuptial agreement, your business remains yours, but any increase in its value during the marriage can give your spouse a cash claim on divorce. Unless they agree otherwise, married couples in Germany are subject to the community of accrued gains (Zugewinngemeinschaft) under Section 1363 BGB (German Civil Code). Unlike a community property system, this statutory regime keeps each spouse’s assets separate and only balances out the gains they made during the marriage once it ends.
For business owners, the regime matters in two ways. First, an equalization claim can arise when the regime ends, typically on divorce. Second, during the marriage, Section 1365 BGB can restrict a spouse’s ability to sell or otherwise dispose of a business interest that makes up essentially all of their assets.
Equalization of Accrued Gains on Divorce
When the regime ends, the spouse whose assets grew less during the marriage can claim half the difference under Section 1378(1) BGB. The business itself is not divided. What matters is how the value of the company or shareholding affects the spouse’s initial and final assets, and therefore their accrued gain. A business or shareholding that a spouse inherits or receives as a gift during the marriage is added to their initial assets under Section 1374(2) BGB, so its value at the time of acquisition does not count as a gain. Any increase in its value after that point, however, does.
For business owners, the real problem is the type of claim: the other spouse is owed money, not shares. A spouse who has built up significant value in a company during the marriage may therefore owe a substantial cash sum. Unless they have enough cash or other assets to cover it, the money may have to be drawn from the company or raised by selling shares. This is particularly difficult when the shareholding is valuable but cannot easily be sold.
The timing rules add to the pressure. Under Section 1384 BGB, the accrued gain and the amount of the claim are calculated as of the date the divorce petition is served on the other spouse (Rechtshängigkeit), not the date the divorce becomes final. The claim itself only arises once the divorce is final, and it is due immediately. The law offers two ways to ease this burden:
- Deferral: Under Section 1382 BGB, the family court can, on application, defer the claim if the paying spouse does not dispute it and immediate payment would be particularly unreasonable at that point, even taking the other spouse’s interests into account. The deferred amount bears interest, and the court can order the paying spouse to provide security.
- Refusal to pay: Under Section 1381 BGB, the paying spouse can refuse to pay to the extent that equalization would be grossly inequitable in the circumstances of the case.
Neither is a reliable substitute for an agreement made in advance. Business owners who want predictable outcomes for their company are better placed with a prenuptial agreement built around their specific situation.
Spousal Consent for Transactions Involving the Business
The property regime can also limit what a spouse may do with a business interest while the marriage continues. Under Section 1365(1) BGB, a spouse needs the other spouse’s consent for any transaction that disposes of their assets as a whole. This can also apply to a single shareholding that makes up essentially all of that spouse’s assets. The rule only applies, however, if the other party to the transaction knows this, or at least knows the circumstances from which it follows.
If the other spouse refuses consent, the family court can grant consent in their place where the conditions of Section 1365(2) BGB are met. In practice, this can become relevant when a significant shareholding is sold or a business succession is arranged. International buyers, co-investors, and business owners themselves are often unaware that German matrimonial property law can affect a share deal at all. We therefore recommend checking the matrimonial property position as early as possible, ideally before negotiations with a buyer or successor begin.
Which Law Applies to an International Marriage?
For international couples, German matrimonial property law does not automatically apply, even if the company is based in Germany. Which law governs the marriage depends mainly on when the couple married, where they first lived together after the wedding, and whether they have made a choice of law under the EU Matrimonial Property Regulation (Regulation (EU) 2016/1103). For a business owner whose company is based in Germany, a choice of German law combined with a modified community of accrued gains can create a clear and predictable framework. Where the business or other significant assets are located outside Germany, our family lawyers assess the position case by case and work with partner firms abroad.
What Can a Prenuptial Agreement for Business Owners Cover?
A prenuptial agreement for a business owner can exclude the business from the equalization of accrued gains, cap or defer the claim, set rules for valuing the company, and cover pension rights and maintenance. Under Section 1408(1) BGB, spouses can set their own matrimonial property arrangements by agreement, either before or during the marriage. For business owners, a modified community of accrued gains (modifizierte Zugewinngemeinschaft) is often the right approach: the statutory regime stays in place, but the business interest is excluded from the equalization. Provisions on pension rights equalization (Versorgungsausgleich) and post-divorce maintenance can form part of the same agreement. Keeping the community of accrued gains in place can also have tax implications, which should be considered when drafting.
Like any prenuptial agreement, an agreement for a business owner must withstand the courts’ two-stage review under Sections 138 and 242 BGB, first at signing and again when a spouse relies on it at divorce. For business owners, it helps that the equalization of accrued gains is the area most open to agreement, far more so than maintenance for a spouse caring for a joint child. The Federal Court of Justice has recognized that a business owner has a legitimate interest in protecting the company from a claim that could threaten its existence. It has also held that excluding equalization does not by itself make an agreement invalid, even where the other spouse gives up work to care for the family (BGH, decision of March 15, 2017, XII ZB 109/16).
The agreement is, however, assessed as a whole. Provisions that would each be acceptable on their own can together make the entire agreement void. This happens where they place one spouse at a clear disadvantage and that spouse was in a weaker negotiating position when signing, for example because they were left out of the negotiations, did not receive a draft in advance, or depended financially on the other spouse. If the agreement is void, the protection for the business falls along with everything else, and the aim of protecting a family business does not justify waiving maintenance. Business owners are therefore better served by keeping the protection targeted rather than excluding every consequence of divorce. They should also make sure the other spouse is involved in the negotiations, receives the draft well before the notary appointment, and can take independent advice. Where a spouse’s situation calls for particular care, for example where their residence status in Germany is tied to the marriage, our family lawyers take this into account when structuring the agreement.
Ways to Protect a Business in a Prenuptial Agreement
The main options for protecting a business compare as follows:
| Provision | Effect |
|---|---|
| Excluding the business from the equalization | The business interest and any increase in its value are left out of the calculation, while all other gains are still equalized |
| Capping the claim | The equalization claim cannot exceed an agreed maximum amount |
| Lower equalization rate | The other spouse receives less than half of the difference in gains |
| Deferral or installments | The claim is paid over time instead of immediately, protecting the company’s liquidity |
| Valuation clause | The method and information used to value the business are fixed in advance |
| Separation of property | No equalization of accrued gains at all, for either spouse’s assets |
Which combination makes sense depends on the business interest, the spouses’ financial situation, and their personal circumstances.
Agreeing on How the Business Is Valued
Valuation is a further source of disputes. As long as it is unclear what value a business interest will carry in the calculation of the accrued gain, even a carefully drafted equalization clause can remain open to challenge.
Under Sections 1375 and 1376 BGB, the calculation is generally based on the value of the business or shareholding on the relevant cut-off date. The BGB does not prescribe a general method for valuing businesses. The Federal Court of Justice (Bundesgerichtshof) has developed its own principles for valuing businesses, particularly professional practices such as medical, law, and architecture firms. These include:
- Goodwill: The intangible value of the business can generally be included in the valuation.
- Owner’s salary: An appropriate salary for the owner’s own work must be taken into account.
- Latent income taxes: Taxes that would arise on a sale of the business may have to be taken into account.
These principles cannot simply be applied to every type of business. Under Section 1379 BGB, each spouse can also demand information and supporting documents from the other. A prenuptial agreement can therefore set out in advance how the business interest is to be valued and which information and valuation methods will be used, making the valuation clearer and more predictable.
When Separation of Property Makes Sense
Separation of property suits couples who want no equalization of accrued gains at all, but for most business owners, a modified community of accrued gains is the more balanced choice. Separation of property (Gütertrennung), which applies under Section 1414 BGB when the statutory regime is excluded, protects the business extensively, but it also removes equalization for all private assets and can have more far-reaching financial and tax consequences. The more an agreement restricts the other spouse’s rights on divorce, the more closely it must fit the couple’s actual circumstances. For family businesses, corporate structures such as a family company or family pool may also be worth considering.
Form and Costs of a Prenuptial Agreement
Like every prenuptial agreement in Germany, an agreement for a business owner must be notarized, with both spouses present at the same time (Section 1410 BGB). Translation for a spouse who does not speak German and notarization at a German consulate abroad work as they would for any couple. Notary fees are set by statute and are generally based on both spouses’ combined assets under Section 100 GNotKG (Court and Notary Fees Act), but for business owners the scope of the agreement matters: if it concerns only specific assets, such as the shareholding, the fee is based on the value of those assets instead, capped at the overall figure. Legal fees for drafting and negotiating the agreement are separate, and we explain the expected further costs before drafting begins.
Concluding or Amending an Agreement During the Marriage
A prenuptial agreement can be entered into at any point during the marriage, and an existing agreement can be amended or terminated. Both spouses must agree, and the new agreement must again be notarized. When an agreement is signed during the marriage, the courts also consider that a spouse may be giving up rights already built up in the marriage, so an agreement that offers nothing in return is examined more critically.
Common Reasons to Update an Existing Agreement
The most common trigger is founding or taking over a business during the marriage. From that point on, the business builds up value that counts toward the accrued gain. At that point, clarity about who owns what matters not only to the couple but also to co-shareholders, lenders, and investors. Other reasons to amend or terminate an agreement include:
- The admission of new shareholders
- A financing round
- A change of legal form
- The start of succession or estate planning
- A significant change in either spouse’s financial situation
Whether an update is needed depends on the content of the existing agreement and the spouses’ current circumstances.
Advice on Prenuptial Agreements for Business Owners from Schlun & Elseven
A prenuptial agreement for a business owner raises questions of family law and corporate law in equal measure. Whether the agreement excludes business assets, caps the equalization claim, or adjusts pension rights equalization, each provision must fit the existing articles of association and withstand later review by the courts. In our experience, agreements for business owners run into trouble less often because of what they say than because of how they came about, for example when the draft is first presented at the notary appointment or the agreement is signed in a hurry alongside a share transfer. The agreement is therefore best prepared with a lawyer in advance rather than worked out at the notary appointment.
At Schlun & Elseven Rechtsanwälte, our family law practice group reviews your current property regime, drafts proposed terms, and supports negotiations through to notarization. On questions of shareholding structure and articles of association, it works with our corporate law team. Where the marriage or the business has an international dimension, we clarify which law applies at the outset and coordinate with partner firms abroad where needed. If you already have a prenuptial agreement, we can advise you on your options for amending or terminating it. We advise clients from all over the world in English and German, work fully remotely where necessary, and treat every matter with strict confidentiality. Contact us to have your situation reviewed by our family lawyers.
Frequently Asked Questions about Prenuptial Agreements for Business Owners
No. Without an agreement, the community of accrued gains generally applies. A prenuptial agreement can be worthwhile, however, if you want to exclude a business interest from the equalization of accrued gains or make the financial consequences of a divorce more predictable.
The business is not automatically divided. However, the value of a business interest can be included in the calculation of the accrued gain and give the other spouse a claim for payment.
Yes. Through a modified community of accrued gains, a business interest can be excluded from the equalization in whole or in part.
Yes. A modified community of accrued gains can exclude increases in the value of a business interest from the equalization, while other gains during the marriage are still shared.
Only in specific cases. Under Section 1365 BGB, consent is needed if the shares make up essentially all of your assets and the buyer knows this. Our lawyers can check whether this applies before a sale.
Articles of association sometimes require shareholders to exclude their shares from the equalization of accrued gains by prenuptial agreement. Whether such a clause applies, and what it requires, depends on the company, so our lawyers review it with you.
Notary fees in Germany are set by statute and depend mainly on the value of the transaction, generally the combined assets of both spouses. If the agreement covers only specific assets, such as a business interest, the fee may be based on the value of those assets alone.
Practice Group: German Family Law
Practice Group: German Family Law
Contact Schlun & Elseven Rechtsanwälte
Please use our online form to outline your request to us. After receiving your request, we will make a brief initial assessment based on the facts described and provide you with a cost offer. You can then decide whether you would like to engage our services.
