Compulsory portion

The right to a statutory share or statutory share claims give close relatives of the testator a claim to a minimum share in the estate – the so-called statutory share. This makes it possible for close relatives to have a claim to be included in the estate, even if the testator has designated other people as sole heirs.

Legal portion claim and those entitled to a legal portion

If people are excluded from the inheritance in a will or by inheritance contract, certain people – close relatives – are entitled to the so-called legal portion. This is expressly stipulated in the German Civil Code (BGB) in Sections 2303 ff. Even if a close relative is completely “disinherited”, the person may be entitled to the legal portion.

Only

• descendants (i.e. children or, in some cases, grandchildren),
• spouses or
• parents of childless people

are entitled to the legal portion if they were excluded from the inheritance due to a last will and testament (will, inheritance contract, Berlin will, etc.).

Anyone entitled to the legal portion is not the heir of the deceased person and therefore not part of a possible community of heirs. Those entitled to a legal portion only have a contractual claim to payment of money against the heirs, which they can also enforce in court if necessary.h durchsetzen können.

Amount of the statutory share claim

For children, the statutory share claim amounts to 50% of the so-called statutory inheritance quota. This means that (disinherited) children can receive 50% of the value of the assets that they would have inherited as legal heirs through the statutory share claim.

For spouses, the extent of the statutory share claim depends, among other things, on whether and how many children the couple has and whether the couple lived in a separation of property (= with a marriage contract) or in a community of accrued gains.

Limitation of the statutory share claim

The claim to the statutory share is a contractual claim of the person entitled to the statutory share against the heir or heirs of a person. Like any other civil law claim, the statutory share claim can also expire. In principle, the statutory share claim expires three years after the person entitled to the statutory share learns of the inheritance and his or her disinheritance.

However, if a person entitled to the statutory share does not learn of the inheritance, the limitation period can be extended to up to 30 years.

In addition, there are certain circumstances under which the limitation period does not apply because the limitation period is suspended. This is the case, for example, if

• the person entitled to the statutory share cannot be found,
• the whereabouts of the person entitled to the statutory share are unknown,
• heirs and the person entitled to the statutory share are negotiating the claim and its fulfillment,
• a lawsuit between the person entitled to the statutory share and the heir is pending in court.

Withdrawing the statutory share / excluding the statutory share

Section 2333 of the German Civil Code (BGB) stipulates that it is fundamentally possible to withdraw the statutory share from a person entitled to a statutory share by means of a last will and testament. However, the legal requirements for this are very strict. Since the statutory share can only be withdrawn under very strict conditions, it is important that a will or inheritance contract etc. is formulated very precisely at this point. Legal support is important and useful here.

Legal portion waiver agreement

One way to prevent inheritance disputes over the legal portion is a so-called legal portion waiver agreement. This agreement must be concluded during the testator’s lifetime and the person who will later be entitled to the legal portion.

In this agreement, a person entitled to the legal portion waives the right to assert the legal portion claim against the heirs later. A compensation payment is agreed between the testator and the person entitled to the legal portion for this waiver. It is possible to agree on a complete legal portion waiver or only a partial waiver of the legal portion claim (limited legal portion waiver agreement).

Such an agreement can be useful, for example, between parents and children if the parents draw up a so-called Berlin will and thus effectively disinherit their children in the first inheritance.

It is important to know, however: This agreement is only valid if it has been notarized.

Tactical renunciation and statutory share for spouses

In principle, it is not possible to renounce the inheritance and then claim the statutory share. Only those who have been disinherited – not those who have decided against the inheritance themselves! – can claim the statutory share.

There is an exception in the law for spouses in a community of accrued gains (Section 1371 Paragraph 3 of the German Civil Code): As a spouse, it is possible to renounce the inheritance, then receive the equalization of accrued gains in the event of death and also claim the statutory share. However, this does not apply if you have previously renounced your statutory right of inheritance or your right to a statutory share in a contract with your spouse.

Tactical renunciation only makes legal and financial sense under certain conditions. In this respect, tactical renunciation should not be attempted without professional legal advice in order to avoid making mistakes when making such far-reaching decisions.