Spouse’s Will in Germany: “Berliner Testament”

As a joint will, the Berlin will maintains the surviving spouse’s standard of living and ensures that the inheritance remains in the family even if the surviving spouse dies.

The main feature of the Berlin will is that in the event of the death of the first spouse, there is no community of heirs between the surviving spouse and children or other heirs, so consequently, there is no division of the estate. Inheritance settlement refers to the process of dividing the estate among the heirs. It is one of the most protracted and problematic processes in German inheritance law. It, therefore, seems appropriate to avoid this by drafting a will accordingly.

However, the Berlin will does not only have advantages. It must also be considered that children do not inherit anything in the first case of inheritance. Therefore, tax allowances of € 400,000 per child (as of 2023) remain entirely unused, and in the second case of inheritance, a higher amount can exceed this allowance.

Two possible interpretations determine how the position of the surviving spouse should be.

The standard case is the unitary solution, Section 2269 (1) BGB. The spouses appoint each other as sole heirs. Upon the first spouse’s death, their assets merge with those of the surviving spouse. Subsequently, the final heir inherits all the remaining assets of the surviving spouse. Here, the spouse is in a strong position and has full power of disposal over the two merged assets.

However, it is also possible to agree on the separation solution. In this case, the spouses are appointed as preliminary heirs and the third party as subsequent heir. This leaves two separate estates. The surviving spouse, now the pre-heir, remains the owner of their estate. The third party, i.e., the subsequent heir, is the conditional next heir of the first deceased. The decisive difference is that in the case of the separation solution, the surviving spouse, as the previous heir, is subject to restraints on the disposal of the assets of the first deceased following Sections 2113 et seqq. BGB.

For a Berlin will to be valid, formal requirements must be met. These include the following:

• handwritten by at least one spouse,
• handwritten signature of both spouses under the text (closing function of the signature),
• in the case of wills consisting of several pages, signature at the end of each page and numbering of the pages,
• date and place.

As an alternative to private drafting, a Berlin will can also be drafted for recording at a notary’s office. Other requirements apply for such a “public will”.

A remarriage of the surviving spouse leads to the new spouse becoming entitled to a compulsory portion (“der Pflichtteil”) as soon as the previously surviving spouse dies. This can be unfair to the children, who should receive the entire inheritance as final heirs in the second succession. “Remarriage clauses” are often used for this case. Thus, in the case of remarriage, the subsequent estate is already triggered at that time, and the children inherit before the surviving spouse’s death.

The Berlin will provides that in the event of the inheritance of the first spouse passing away, the children initially receive nothing. In some cases, this is not accepted and leads to the children asserting their claim to the compulsory portion (“der Pflichtteil”). This can create significant difficulties for the surviving spouse, especially if company shares or real estate are part of the inheritance and there is insufficient liquidity to pay out the compulsory portion.

Most Berlin wills are provided with compulsory portion penalty clauses to prevent descendants from exercising their right to the compulsory portion. Although the beneficiaries of the compulsory portion cannot be prohibited from asserting their claim to it (unlike in a contract of inheritance), such clauses usually stipulate that if the claim to the compulsory portion is asserted in the case of the first parent’s inheritance, the descendant is also disinherited in the second case of inheritance and then also only has a claim to the amount of the compulsory portion.

However, a compulsory portion penalty clause does not always make sense. For the effective use of tax allowances, the assertion of compulsory portion claims can also make sense for both sides. Please contact us for a concrete review and assessment of your personal situation. In cooperation with you, we will work out a tailor-made solution to grant you and your children the greatest possible advantage.

As mentioned at the beginning, self-written wills are often ineffective in form, too vague or contestable for other reasons. This can lead to protracted legal disputes. In contrast, a Berlin will prevents such inheritance disputes if it is formally correct and precisely worded. Our team, consisting of lawyers specialising in German family and inheritance law, is committed to your interests.