Compulsory portion law
The right to a compulsory portion regulates the statutory minimum share in the inheritance
In principle, the testator can appoint any person as his or her heir or exclude them from the succession. However, disinheritance is limited by the right of descendants to a compulsory portion (Pflichtteilsrecht).
Who is entitled to a compulsory portion?
Only the next of kin of the deceased are entitled to a compulsory portion. These include the deceased's descendants (no matter if legitimate or adopted), the spouse or registered partner and the parents if the deceased died without children.
The prerequisite for the spouse’s and registered partner’s entitlement to a compulsory portion is the existence of the legally valid marriage or partnership. If at the time of death the prerequisites for divorce of the marriage existed and the deceased had applied for or consented to divorce, the right to a compulsory portion does not apply.
Who is not entitled to a compulsory portion?
Distant relatives such as grandparents, siblings, nieces/nephews, stepchildren or foster children are not entitled to a compulsory portion. Partners who were not married to the deceased are also not entitled to a compulsory portion.
If a person entitled to a compulsory portion has signed a compulsory portion waiver agreement or an inheritance waiver agreement with the testator before a notary, a claim to a compulsory portion does not arise.
When does the claim to the compulsory portion arise?
The claim to the compulsory portion only arises upon the death of the testator and only if a person from the group of those entitled to the compulsory portion has been excluded from the legal succession by a disposition of death (will or contract of inheritance). The latter may have been done expressly (by disinheritance) or tacitly (by non-inclusion) in the will or inheritance contract.
How high is the compulsory portion?
According to § 2303 (1) 2 BGB, the compulsory portion consists of half the value of the legal share of the inheritance. The amount therefore depends on the legal share of the inheritance and the value of the estate.
The share of the inheritance to which the beneficiary of the compulsory portion would have been entitled according to the law if he or she had not been disinherited is calculated first. Half of this amount is then the compulsory portion. This is due immediately upon inheritance, but the heir only falls into delay with the first reminder.
Advice on the right to a compulsory portion
Are you entitled to a compulsory portion?
In certain cases there are special features such as the “small compulsory portion” and in some cases the heirs even have a right to choose. Depending on the individual case, different possibilities and problems may arise. Therefore, the advice of a competent lawyer is essential.
We will be happy to investigate whether you are entitled to a compulsory portion and in what amount. We will explain the various possible courses of action and advise you in detail on the subject of the right to a compulsory portion.
