Der Pflichtteil / The Compulsory Share of Inheritance in Germany

An inheritance is the assets that a person leaves behind when they die. The person who inherits is the legal successor of the deceased person. The person concerned becomes an heir by operation of law; neither acceptance of the inheritance nor a certificate of inheritance is required.

The compulsory portion is a part of the estate that may not be taken away from a close relative of the deceased by will. It, therefore, represents a legal entitlement under German inheritance law that entitles certain persons to a statutory minimum share of the estate despite a conflicting claim in the will. The compulsory portion also applies in cases where a descendant of the testator has been excluded from succession by the disposition of property upon death following Section 2303 of the German Civil Code (BGB). The compulsory portion claim amounts to half of the statutory inheritance share to which the person entitled to the compulsory portion would be entitled, Section 2303 para. 1 sentence 2 BGB. However, unlike the inheritance, a claim to a compulsory share is only a payment claim that must be asserted against the heir or heirs.

In practice, the amount of the compulsory share depends entirely on the amounts in the will and the number of heirs. The rule is that the compulsory portion is half of what the heir would have been entitled to according to the statutory provisions. The compulsory portion claim is to be determined in the abstract as if the statutory succession had occurred. Other disinherited persons are counted accordingly when calculating the compulsory portion claim. However, persons who renounce the inheritance or are unworthy of inheritance are excluded so that the share of the compulsory portion of the other persons entitled to a compulsory portion is increased again.

If the compulsory share condition relates to a child who would have been entitled to 1/4 of the estate according to the statutory provisions, they are entitled to 1/8 of the estate according to the compulsory share.

If the testator attempts to leave less than the compulsory share to a legal heir, the latter can claim the remaining amount from the other heirs. In this case, if the legal heir is entitled to €20,000 but only received €5,000 in the will, they can claim the additional €15,000 to which they should be entitled.

The estate’s value is determined by comparing the assets with the liabilities of the estate. After deducting the liabilities from the assets, a surplus remains, from which the compulsory portion is determined. Liabilities include debts arising from contractual obligations, tax debts and loans that must be repaid.

The Pflichtteil is a monetary sum; it does not consist of the testator’s individual assets. Therefore, when claiming the Pflichtteil, the statutory heir cannot make demands regarding the individual assets of the testator, which they may have left to other individuals. The statutory heir entitled to the Pflichtteil can thus only demand that they are compensated for the monetary amount relating to the amount they would be allowed.

In cases where the testator attempts to circumvent the compulsory portion by making gifts to third parties to reduce the estate, there are recourse options for legal heirs. In this case, it is a matter of the testator giving away assets to others so that the total size of the estate is reduced. In such cases, the legal heir can supplement their compulsory portion under Section 2325 BGB by adding the value of the gifts to the total estate. So, if the value of a gift is €20,000, this amount is added to the estate’s value. However, there are limits to this claim:

• The gifts in question relate to gifts made ten years before the deceased’s death. Gifts made before this period are generally not included in this calculation.
• In addition, the value of the gift decreases over time from the date of the gift. The value decreases by 10% per year until it is reached after ten years. It can then no longer be claimed as a supplement to the compulsory portion.

So, if the gift was made in the year of the deceased’s death, the legal heir can add 100% of the value of the gift to the rest of the estate. If this gift was considered in the valuation of the estate, the value of the compulsory portion is increased.

Losing the right to a compulsory share is difficult but possible. Some legal exceptions allow a person to be completely disinherited. The law here is based on Section 2333 of the German Civil Code and includes cases in which the person has committed criminal offences, such as when the heir:

• “Attempted the life of the testator,”
• the person has been sentenced to a prison term of at least one year without parole for an intentional criminal offence. It is, therefore, unreasonable for the testator to expect the descendant to participate in the estate.
• Or if the person has been placed in a psychiatric hospital or correctional facility for a similarly serious intentional criminal offence.

Therefore, problems such as distancing between parents and children over time are not grounds for complete disinheritance. Family difficulties are generally insufficient to fully fulfil the criteria for disinheriting a close family member.

In addition to the deprivation of a compulsory portion, the unworthiness of a compulsory share can also be considered. A person is deemed unworthy of a compulsory portion if they are unworthy of inheritance per Section 2339 BGB. “[Un]worthy of inheritance” is

1. anyone who has wilfully and unlawfully killed or attempted to kill the testator or placed the testator in such a state that they were incapable of making or cancelling a disposition of property upon death until their death,
2. whoever wilfully and unlawfully prevented the testator from making or cancelling a disposition of property upon death,
3. anyone who, by fraudulent misrepresentation or unlawfully by threat, induced the testator to make or revoke a disposition of property upon death,
4. whoever is guilty of an offence under Sections 267, 271 to 274 of the Criminal Code regarding a disposition of property upon death by the testator.

The difference between the deprivation of the compulsory portion and the ineligibility for a compulsory portion is that the testator can declare the former, and the latter must be sought by the heirs through a challenge after the testator’s death.

Although losing the entitlement to the Pflichtteil is reserved for more severe difficulties involving criminal law aspects, waiving the entitlement to the Pflichtteil is more straightforward. It is possible in principle and does not require any prior criminal proceedings. Waiving the entitlement to the Pflichtteil can be achieved through the contract on renunciation of inheritance (it should be noted in this context, however, that the waiver of compulsory portion rights can only occur before the death of the testator). Alternatively, the contract of renunciation of compulsory share allows for certain assets to be left out of the Pflichtteil.

Such actions allow for changes or renunciations to be made. There may be personal reasons why this may be considered for those involved. However, they should consider legal counsel before completing this step.

As a multidisciplinary full-service law firm specialising in German and international inheritance law, we advise clients worldwide on all inheritance-related issues. Whether it concerns the drafting of wills, succession, compulsory portions, or inheritance disputes – our lawyers have excellent expertise and the necessary experience and sensitivity to provide targeted support. We will be happy to draft your will on your behalf and ensure compliance with all legal regulations to guarantee the legal validity of your dispositions and prevent unnecessary inheritance disputes.

In the event of an inheritance, our lawyers carefully examine and interpret the will (or other declarations of the testator) to create clarity for all parties involved. Regarding inheritance disputes, it is advisable to reach an amicable solution first. Negotiations with co-heirs always require tactfulness and patience, but above all, assertiveness. If an agreement still seems impossible, an action for the distribution of the estate may be a possible way out. The German law firm Schlun & Elseven Rechtsanwälte will carefully examine your case and assess your chances and risks in court so that your rights and interests as an heir are always protected.

Should you have further questions regarding the law on compulsory portions and/or require individual advice, please do not hesitate to contact us directly.