Right to a compulsory portion in Germany
The compulsory portion is a legally regulated minimum share in the estate of a testator, to which both disinherited and insufficiently provided relatives (additional compulsory portion [Zusatzpflichtteil], § 2305 BGB) are entitled. Children of the deceased are in principle entitled to claim (§ 2303 I 1 BGB), regardless of whether they are legitimate, illegitimate or adopted. Spouses and registered civil partners (eingetragene Lebenspartner) are also always entitled to the compulsory portion in addition to the children, § 2303 II 1 BGB. Grandchildren are only entitled if the testator’s children are already deceased. Parents are only entitled to the compulsory portion if the deceased left no children or grandchildren, § 2309 BGB. Although siblings of the deceased are part of the legal succession, they are not entitled to a compulsory portion.
The amount of the compulsory portion depends on the compulsory portion quota and the value of the estate. The compulsory share amounts to half of the legal share of the inheritance, § 2303 I 2 BGB. If according to the legal succession you were to inherit half of the estate, your compulsory portion is one quarter. To calculate the value of the estate, an estate inventory is necessary, which the heirs must draw up. All assets, liabilities and gifts of the deceased must be considered.
If you are entitled to the compulsory portion or an additional compulsory portion, you can demand payment in money from the heirs.
Right to a compulsory portion in Switzerland
The Swiss law on the compulsory portion is a mandatory law which grants the heirs a minimum proportion of the estate. Those entitled to a compulsory portion have the right to an inheritance share. According to Article 471 of the Swiss Civil Code, the compulsory portion also amounts to half of the statutory inheritance entitlement. The other half is called the “free quota” and can be used to benefit any person or foundation or association. Until the end of 2022, the compulsory portion was ¾ for the children and ½ for the parents of the deceased. Now, parents only inherit according to the legal succession and therefore only if the deceased has no descendants and the free quota was not otherwise regulated by a will or inheritance contract.
If heirs are of the opinion that their compulsory share has been violated by the testator, they must take the initiative and seek a reduction action in accordance with Article 522 Swiss Civil Code. This must be done within one year of becoming aware of the deceased’s death. Depending on the situation, the issuance of the certificate of inheritance may already have to be prevented within one month.
The most frequent grounds for actions for reduction are violations of the compulsory portion quotas in the will or in a contract of inheritance. Likewise, large gifts made during one’s lifetime may be taken into account if they were made within the last five years before the testator’s death or are freely revocable.
Differences between Germany and Switzerland
Apart from minor differences in the calculation of the estate value, the most important difference is that in Switzerland those entitled to a compulsory portion automatically become co-heirs. In Germany, beneficiaries of the compulsory portion are only entitled to a compensation claim under the law of obligations against the actual heirs. In the end, however, the beneficiaries of the compulsory portion only receive a payment in money and thus only indirectly participate in the testator’s inheritance.
However, you may be able to prevent an unwanted community of heirs by making a choice of law. You can either choose the law of succession of the country in which you live or that of the country of which you are a national. If you are a German citizen living in Switzerland and wish to exclude a beneficiary of a compulsory portion from inheritance, it may be advantageous to choose German inheritance law for your inheritance. In this way, you prevent the automatic formation of a community of heirs with the disinherited person. The disinherited person can then – provided he or she is entitled to a compulsory portion – assert a claim for compensation under the law of obligations against the heir. However, he does not become a co-heir.
Do you have questions in a cross-border case? We will be happy to help you and find a solution for your case that is tailored to your wishes. If you have the feeling that you have not been sufficiently considered in an inheritance case, we will be happy to check this for you! We will be pleased to advise you in Constance or Zurich as well as at home via telephone or video conference.