Guide to distribution of surplus

How is the surplus calculated? What exactly belongs in the list of assets? How is the value of individual assets determined? How can I protect myself against my spouse moving his or her assets after the separation?

The spouses live in the matrimonial property regime of the community of acquisitions, unless they have agreed otherwise by marriage contract (§ 1361 (1) BGB).

Contrary to a widely held view, the husband’s property and the wife’s property do not become joint property of the spouses. However, the gain achieved by the spouses in the marriage is compensated when the marriage ends (§ 1363 (2) BGB).

§ 1378 (1) BGB states: If the gain of one spouse exceeds the gain of the other spouse, half of the surplus is due to the other spouse as a claim for compensation.

How is the surplus calculated?

In order to calculate the surplus, it is first necessary to determine the relevant deadlines. First there is the cut-off date for the initial assets. The cut-off date for initial assets is always the date of marriage. Then there is the key date for the final assets. In the case of divorce, this key date is only determined after the divorce petition has been filed in court. In the case of divorce, the deadline for the final assets is the day on which the spouse receives the divorce petition from the other spouse. After the divorce petition has been served, the court will inform the parties of the exact date on which it was served. Under certain circumstances, an application for early settlement of the surplus can also be filed.

The calculation now takes place in two steps.

  1. It is then calculated how much assets each spouse has gained during the marriage. It is then calculated how much assets each spouse has gained during the marriage. This gain of assets is called the spouse’s surplus. In fact, it is purely a calculation. (Surplus is the amount by which the final assets of a spouse exceed their initial assets, § 1373 BGB).
  2. Then, a comparison of the respective surpluses is made. If, for example, the husband has earned €100,000 surplus, while the wife has only earned €10,000, the difference between these values must first be calculated, in this case €90,000. This difference must then be divided equally between the two spouses. Here, half of the surplus is € 45,000. According § 1378 (1) BGB, the wife is then entitled to this amount as compensation from the husband.

What exactly belongs in the list of assets?

  • Basically all legally protected positions with economic value (assets)
  • Joint assets of the spouses (e.g. co-ownership shares in the joint residential property) are to be credited to each spouse with the quota attributable to him or her
  • Claims, even if these are not yet due, and expectant rights, possibly also rights of use (e.g. a usufruct granted for life)
  • Tax liabilities and tax refund claims, insofar as they arose prior to the balance sheet date at the final assets, if applicable deferred tax burden as a value-decreasing factor in the valuation of companies/participations
  • Capital-based life insurance policies or annuity life insurance policies with a capital option, if this option has already been exercised
  • Household contents, insofar as they are the sole property of one of the spouses or were only acquired after the separation (§ 1357 (3) BGB)
  • Items of personal use, if and insofar as they are items of economic value
  • Goods used exclusively as capital investment or the occupation of a spouse
  • A car or motor caravan, except when it is used exclusively for domestic and private purposes
  • Liabilities (debts, in particular loans to finance the common family home)

What does not belong in the list of assets?

  • Household contents that are jointly owned by the spouses (§ 1568b BGB is the more specific stipulation for the division of the joint household contents)
  • Pension rights; also not life insurance, as long as they are related to a pension; these rights are automatically compensated by the pension equalisation scheme in the context of divorce

Does the gift of a larger sum of money from my parents during the marriage also fall into the surplus?

§ 1374 (2) and (3) BGB privileges certain types gifts. The aim is to withdraw from the equalisation of gains those shares of assets which have no connection with the marital life and economic community. Apart from gifts, the most important example is inheritance.

I have no idea exactly what assets my spouse has. How do I get this information?

§ 1379 BGB stipulates that the spouses are obliged to provide information. If the matrimonial property regime has ended or the divorce is pending, each spouse can request information from the other about his or her assets on the cut-off date of the initial, separation and final assets. This information must be substantiated by appropriate documents. The right to information on the assets at the time of separation was introduced by the legislator within the framework of the 2009 family law reform. It is intended to make it easier for the spouses to prove that the other spouse has moved part of their assets after the separation.

How is the value of individual assets determined?

In principle, all assets are to be valued at their full real value in a market economy system, i.e. the market value. This value can only be estimated provisionally. It is possible that the spouses then agree on a value by mutual consent. However, when it comes to the valuation of real estate or companies, in most cases a value appraisal by an expert is required. An entitlement from an endowment insurance policy is to be assessed at the so-called repurchase value if a continuation of the contract is not expected.

How can I protect myself against my spouse moving his or her assets after the separation?

If a spouse has carried out a so-called “disloyal reduction of assets” after the separation, the assets that have disappeared in this way are added to the spouse’s final assets. A disloyal reduction of assets exists, for example, if assets are given away or wasted without good reason (burning cash out of anger and disappointment). However, there will be no objection to a well-earned holiday, the appropriate gift to friend or girlfriend and family. In cases in which it is to be feared that a spouse will move his or her assets abroad, an application may be made to the court that the wealthy spouse can no longer easily dispose of his or her assets (so-called “application for arrest”).

In the past, the same money was worth more. Is this taken into account?

The loss of purchasing power is taken into account by indexing the initial assets. First of all, the nominal increase in value (so-called false appreciation) that has occurred solely as a result of the devaluation of money must be deducted from the increase in value. The consumer price index of the Federal Statistical Office is to be taken as a basis for the calculation.

This article is intended to help you understand the system of the community of acquisition, it’s dissolution and distribution of surplus.

Do you have any further questions about a possibly upcoming distribution of surplus? Please feel free to contact us at any time without obligation.


Katharina Kutter

As an attorney for family and inheritance law and have specialised in advising companies and high net worth individuals in the areas of asset succession, asset division, tax law and family law retirement planning – with a particular focus on cross-border matters. 

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