Anyone who does not have children should plan their asset succession particularly carefully. Without a will, the statutory rules of succession apply — often with unwanted consequences for spouses, partners and relatives. To avoid this, it is advisable to put in place a professionally drafted testamentary disposition. This creates clarity and helps minimize future disputes.
Inheritance law favors biological children and other blood relatives
When it comes to asset succession and estate planning, the focus is usually on passing assets on to the next generation, typically to children or grandchildren. This is also the assumption underlying the law: if a person dies without a will, their children and their children’s descendants inherit alongside the spouse.
But what happens if someone dies without children and therefore without grandchildren? And what if that person has a spouse or civil partner who is also childless?
In this situation, it is important to think carefully and actively about what should happen to one’s assets after death. Who should benefit — and who should perhaps not?
These are questions that should be considered in good time. With professional support, testamentary dispositions, such as a will, should be drafted so that they accurately reflect the person’s final wishes.
Married couples without children: clear testamentary planning is essential
If a married couple has no children, the statutory rules of succession often lead to outcomes that no one would have chosen deliberately: the spouse and blood relatives inherit together. The idea that the surviving spouse automatically inherits everything is a modern misconception.
The surviving spouse’s share of the estate alongside other relatives depends on the couple’s matrimonial property regime.
- Under the statutory matrimonial property regime of community of accrued gains, the surviving spouse generally inherits three quarters of the estate. This consists of one half as the statutory inheritance share and one quarter as equalisation of accrued gains. The remaining quarter then passes, for example, to the deceased’s parents or, if the parents are no longer alive, to siblings. If one parent is still alive and there are also siblings, these relatives inherit together.
- If separation of property has been agreed in a marriage contract, the surviving spouse inherits 50 per cent of the estate. The same rules apply to the remaining 50 per cent: it passes to the parents, siblings, or to one parent and siblings together.
- If no individual arrangements have been made, a childless spouse may therefore, in the worst case, find themselves in a community of heirs with the deceased spouse’s parents, siblings, nieces or nephews. This can lead to situations that none of the parties would want, for example where the surviving spouse ends up co-owning the marital home together with parents-in-law or siblings-in-law.
There is only one reliable way to avoid this: a testamentary disposition, in other words, making a will.
Note: If there is only a spouse, but no parents, siblings, nieces, nephews or grandparents, the surviving spouse inherits the entire estate by law.
Unmarried couples: no inheritance without marriage
What is the position for unmarried couples without children?
The key point is this: without marriage and without a will, the surviving partner inherits nothing. This can lead to particularly difficult outcomes where a property was purchased solely by the deceased partner, but both partners lived in it.
Parents or siblings may, as heirs to the property, force the surviving partner out unless that partner has been appointed as an heir in a will or has at least been granted a right of residence.
You can find out how the inheritance position changes for married or unmarried couples if one partner has biological children in our article “inheritance law and patchwork families: how stepchildren inherit”.
When does the state inherit?
But what happens if there are no relatives at all — not even cousins — who could become statutory heirs, and no spouse either, for example because the spouse has already died or the deceased was unmarried at the time of death?
If the probate court is unable to identify any heirs despite an intensive search, the so-called state right of succession applies. In this case, it is not necessarily the Federal Republic of Germany that inherits. Under Section 1936 of the German Civil Code, the estate passes to “the federal state in which the deceased had their last place of residence at the time of death or, if this cannot be established, their habitual residence”; otherwise, it passes to the Federal Republic.
Note: Anyone who has no children, no living relatives and no spouse should make a testamentary disposition if they wish to avoid the state inheriting their estate.
What planning options are available?
To prevent the statutory rules of succession from applying unintentionally, it is essential to make a testamentary disposition. The most important ways to structure one’s estate individually are as follows.
Individual will
An individual will allows one person to regulate their estate independently, for example independently of their spouse. It may be handwritten or notarised and serves as a testamentary disposition. An individual will can be revoked or amended at any time while the testator is alive and has testamentary capacity. It provides personal security and maximum flexibility.
Note: Spouses may also each make separate individual wills independently of one another.
Spousal will / joint will
This type of will is reserved for spouses. It may be handwritten or notarised. A joint will can create mutually binding provisions that continue to have effect after the death of one spouse. This is both an advantage and the greatest risk of a joint will. Such binding effect can be avoided by including an express provision in the will or by agreeing testamentary reservations of the right to amend, for example in the event of remarriage.
Contract of inheritance
A contract of inheritance is a notarised testamentary disposition entered into by at least two people. It can also be concluded between several people and is therefore suitable, for example, for regulating business succession or for patchwork families.
As a rule, changes are only possible with the consent of the contractual parties or where a right of withdrawal or similar mechanism has been agreed. A contract of inheritance has a very strong binding effect and is therefore particularly suitable where all parties need to be able to rely with certainty on the future succession arrangements.
Compulsory portion claims by parents and siblings: are they possible?
This raises an important question: can certain people have a compulsory portion claim if a childless person structures their estate and excludes statutory heirs such as parents or siblings, for example by disinheriting them in favor of a spouse?
In principle, this is possible. However, in the case of childless people, only parents and spouses may have a compulsory portion claim. Siblings, nieces and nephews do not. Compulsory portion claims are therefore particularly relevant where someone disinherits their surviving parents by will, for example in favour of their spouse. In such cases, it may be sensible to agree a waiver of the compulsory portion with the parents.
In practice, the spouse’s compulsory portion in the case of childless people can also become unexpectedly relevant where the deceased had a new partner and made provision for that person in a will, but the deceased’s original marriage had never been dissolved.
Last but not least: is a foundation an alternative?
Many childless people consider dedicating their assets to a good cause, for example by establishing a foundation with their own assets to support purposes such as children’s welfare, research, animal protection or nature conservation.
However, setting up one’s own incorporated foundation with legal capacity is generally only sensible where a very substantial amount of wealth is to be transferred to the foundation. Legally independent foundations must finance their governing bodies, tax obligations, tax advisers and other costs from their income. Only the income remaining after these costs can be used for the foundation’s purpose.
An alternative form is a consumable foundation, where the foundation’s assets are gradually used up for the foundation’s purpose. In some cases, even with smaller estates, it may also be sensible to transfer the assets to an existing foundation as an unincorporated foundation.
Note: In the case of business foundations, where a business is transferred into a foundation, inheritance tax advantages may arise if the structure is properly designed, due to the preferential tax treatment of business assets. However, the business will then belong permanently – in principle forever – to the foundation.
Estate planning is indispensable
Conscious estate planning is particularly important for childless married couples and partners. Without individual arrangements, the statutory rules of succession apply, and these often do not reflect personal wishes.
Anyone who wants to ensure that their assets are passed on in accordance with their own wishes should therefore make a legally secure will at an early stage.
Do you have any questions about inheritance law for people without children?
Please feel free to get in touch. I would be pleased to answer your questions on this topic. Simply arrange an appointment using the booking options shown alongside.
Yours sincerely,
Nicolai Utz
Your ACCONSIS contact
Nicolai Utz
Lawyer
Specialist lawyer for inheritance law
Managing Director of ACCONSIS
Service phone
+49 89 547143
or via email
n.utz@acconsis.de
FAQ – answers to the most frequently asked questions about this topic
Who inherits if I am childless and have no will?
Without a will, the statutory rules of succession apply. If there are no children or grandchildren, the spouse and other statutory heirs inherit, such as parents, siblings or their descendants, including nieces and nephews. Anyone who does not make their own arrangements therefore risks their estate being distributed in a way that is unlikely to reflect their personal wishes.
Why is a will particularly important for childless married couples?
Childless married couples often assume that the surviving spouse automatically becomes the sole heir. As a rule, however, this is not the case. Depending on the matrimonial property regime and family circumstances, the deceased’s parents, siblings or other relatives may also inherit. A will makes it possible to protect the spouse specifically and avoid unwanted communities of heirs.
Do parents or siblings have a compulsory portion claim if I disinherit them?
In the case of childless people, parents may be entitled to a compulsory portion in certain circumstances. Siblings, nieces and nephews, however, have no compulsory portion claim. Anyone wishing to exclude their parents from succession in favour of a spouse or another person should have it checked whether a waiver of the compulsory portion would be appropriate.
