Compensation for care services after death

Compensation for care after death is an issue that heirs often have to deal with after a person’s death if a co-heir cared for the deceased person before their death. Compensation for care services is an aspect in the event of an inheritance over which an inheritance dispute can break out.

Typical case of compensation for care services

What the compensation for care services after death can look like can best be illustrated with an example:

Widow W has two children, her sons A and B. W is in need of extensive care and is self-sacrificingly cared for by A for quite some time before her death. After W’s death, A asks himself whether he really has to share the inheritance equally with his brother B, or whether he can demand compensation for the services he provided.

Compensation according to the BGB

In fact, the law in § 2057a BGB provides for the possibility that descendants can demand compensation from co-heirs for special services in individual cases. This applies particularly and above all to the care of a person before their death, i.e. the care of the later testator.

But even if a descendant has made a special contribution to maintaining or increasing the assets of the person being cared for over a longer period of time by working in the household, profession or business of the later testator, this person can demand compensation after the inheritance.

It is important to know at this point: Compensation is generally only possible if the descendant inherits on the basis of legal succession. Compensation is possible for testamentary heirs. But this case is a little more complicated.

Compensation for children and grandchildren, no compensation for spouses

In Section 2057a of the German Civil Code (BGB), the law expressly only speaks of descendants who can demand compensation. Descendants in this sense are primarily children and grandchildren of the deceased person. Naturally, no descendant is, for example, the testator’s spouse. This means that a spouse cannot demand compensation for care services in accordance with Section 2057a of the German Civil Code (BGB), no matter how long and intensive the care for the spouse may have been.

Settlement is not an estate liability!

It is important to know here: Compensation for care services after death is not a claim by a person against the heirs, as is the case with a legacy, for example. The so-called settlement is therefore not an estate liability. Rather, it must be taken into account directly when dividing the estate among the co-heirs. The person who cared for the testator will be allocated a mathematically higher share of the inheritance if the community of heirs is dissolved.

Scope and amount of compensation

Disputes often arise when it comes to compensating for care services: it is not uncommon for relatives to feel that it is not fair if a person should inherit more because of the care.

But even if the heirs generally agree that a co-heir should receive compensation, for example for care services, disputes often arise about the extent of the compensation. Because the legal provisions for equalization are not very specific. § 2057a Para. 3 BGB simply stipulates that the compensation claim is to be assessed according to what is fair, taking into account the duration and scope of the benefits and the value of the estate.

In this respect, the assessment of the compensation is always a question of the individual case, which must be carried out taking into account the individual circumstances of the individual case. It is generally assumed that the compensation may amount to more than half of the estate, but not the entire estate.  

Specifically, these aspects are particularly important:

• Intensity of care (extent, duration)
• financial expense
• Amount of income lost by the carer
• personal, intangible significance of the care service for the testator
• Value of the estate after deducting estate liabilities
• Scope of preservation/increase of the estate through the person’s performance.

“Compensation” before death – effects?

There is also an important restriction to consider: Compensation for care services before death only takes place if compensation has not already taken place before the death of the person being cared for. This can be the case if the person was actually paid for the care or, for example, a gift was made explicitly as compensation for the care.

Ultimately, this means: compensation after death in accordance with Section 2057a BGB is only possible if the care before the death was free of charge and therefore no compensation has yet taken place.