Claiming a compulsory portion – what you should know

Claiming the compulsory portion is often necessary after a disinheritance if heirs do not want to fulfill the compulsory portion claim or want to pay out too small a share of the value of the estate.

But who is entitled to the compulsory portion? Who can sue for the compulsory portion? And how does this claim work? We provide answers to these and other questions in this article!

When are you “disinherited”?

In principle, only those who have been disinherited are entitled to the “compulsory portion”.

Only a legal heir can be disinherited: If a legal heir is excluded as an heir by the testator, e.g. in the will, he or she is disinherited.

Important! Anyone who is not a legal heir and was named as an heir in a will, but not in a later will, has not been “disinherited”.

However, disinheritance does not have to be expressly formulated. There does not have to be a sentence in the will such as: “I hereby disinherit my son/my wife.” It is sufficient for the testator to expressly name other persons as heirs.

Example: If a man names his children as his heirs in his will and leaves his wife unmentioned, the wife is generally disinherited by this testamentary disposition of the husband. According to the law, the wife would be a legal heir alongside the children. However, the will overrides the statutory succession and the children inherit alone.

In individual cases, partial disinheritance may also be sufficient. This is because claims under compulsory portion law always come into consideration if a person entitled to a statutory inheritance receives less than half the value of their statutory inheritance share.

Who can sue for the compulsory portion?

The group of persons who can claim the compulsory portion is limited to those entitled to the compulsory portion. Section 2303 of the German Civil Code (BGB) regulates who is entitled to the compulsory portion and can therefore sue for it in case of doubt:

“Descendants” are those entitled to a compulsory portion – i.e. children, grandchildren and great-grandchildren of the deceased person. However, parents and the spouse can also have a claim to a compulsory portion and sue for it.

What is the compulsory portion and how much is the compulsory portion claim?

The “compulsory portion” is a claim to a compulsory portion. This claim is the right of the disinherited person to demand a certain amount from the heirs. The claim is purely a payment claim. The amount of the payment is generally based on the compulsory portion (= half of the statutory inheritance share) and the value of the estate.

Example: If the wife in the example above had inherited EUR 500,000 as a statutory heir, she now has a claim to a compulsory portion of EUR 250,000 instead.

The disinherited persons can assert this claim to a compulsory portion against the heirs or the community of heirs. They can therefore request the heirs to pay out the compulsory portion.

Important: Certain items from the inheritance, e.g. jewelry or memorabilia, are not part of the compulsory portion. Only payment can be demanded.

When can you sue for the compulsory portion?

There are two main constellations in which the compulsory portion can be claimed:

1. The heirs do not pay at all.
2. The heirs pay out too small a share of the inheritance.

Even if the heirs generally pay something towards the compulsory portion claim, it is therefore possible to sue for the compulsory portion, e.g. because the value of the inheritance was calculated incorrectly and the heirs have therefore paid out too little.

How do you claim the compulsory portion?

A claim for payment of the compulsory portion can take different forms. What exactly is claimed depends on the specific situation.

In principle, those entitled to a compulsory portion have different claims:

• A claim to information or a claim to a valuation in relation to the estate or
• Entitlement to payment of the compulsory portion in a specifically quantified amount.

If the estate is very clear (e.g. only one bank account) and the value of the estate is easy to determine, you can often sue for payment directly. 

If the estate is complex or the value of the estate is unclear, a “step-by-step action” makes sense: In this case, the first priority is to file an action for information or valuation. Only once the information and valuation of the estate have been provided must the claim to the compulsory portion be precisely quantified in the action.

Important: The heirs must provide correct and complete information. If there are indications that the inventory (estate inventory) is incorrect or incomplete, it is possible to apply for the heirs to be required to affirm the information provided in lieu of an oath.

What does it cost to claim the compulsory portion?

This depends on the value of the compulsory portion. This is because the court and lawyer’s fees for an action “for the compulsory portion” are based on statutory fee tables (Court Costs Act, Lawyers’ Fees Act) and depend on the value of the compulsory portion. With regard to legal fees, it is customary to conclude a remuneration agreement in advance.

In principle, as a person entitled to a compulsory portion, you must bear the costs of the lawsuit yourself. If the heirs are ordered to pay the compulsory portion, they must also bear all or at least part of the costs of the person entitled to the compulsory portion.