Statutory entitlement

The deceased may dispose of his or her assets not only during his or her lifetime, but also after his or her death as he or she sees fit. Statutory succession only applies unless the deceased has determined otherwise in accordance with his or her individual wishes by disposition of property upon death (will or contract of inheritance).

The testator makes use of his or her “testamentary freedom”. In contrast to statutory inheritance law, the testator’s own relatives do not necessarily have to be included. Rather, the “negative testamentary freedom” includes the option of not including close relatives, such as one’s own children, in a will or expressly excluding them as heirs.

However, since the constitutional protection of the family in Article 6 of the Basic Law and the legislative values of a “family inheritance law” (“the property runs like the blood”) should not be completely undermined by the testator’s will, German inheritance law provides for the right to a compulsory portion. The right to a compulsory portion therefore guarantees a minimum share for the direct relatives (descendants, spouses, parents) of the testator, even in the event of a “disinheritance” regulated in individual cases. The right to a compulsory portion follows the constitutional principle of “family solidarity”, as reflected, for example, in the maintenance provisions of family law.

The right to a compulsory portion does not guarantee the next of kin of a deceased person a “genuine” right of inheritance. They therefore do not become “heirs”. However, those entitled to a compulsory portion receive their own monetary claim against the heirs in the amount of a minimum share of the estate.

Who is entitled to a compulsory portion?

The group of persons entitled to a compulsory portion is very narrowly defined. According to Section 2303, it includes descendants as well as parents and (same-sex or opposite-sex) life partners or spouses of the testator. Stepchildren are only entitled to a compulsory portion in the event of adoption during their lifetime. The law defines “descendants” as all persons who are related to the testator in a direct line.

How high is the compulsory portion?

The compulsory portion is half of the inheritance share to which the person entitled to the compulsory portion is entitled under statutory inheritance law. This depends on the share to which the respective persons would be entitled according to the statutory succession. The persons entitled under statutory inheritance law must be included in this quota, even if other entitled persons do not make use of their right to a compulsory portion, for example.

What are the differences between inheritance and compulsory portion?

If someone is entitled to a compulsory portion, they are entitled to a compulsory portion under the law of obligations. Such a claim to a compulsory portion is fundamentally different from an inheritance:

If a person acquires a right of inheritance through an individual testamentary disposition (e.g. through a will) or by law, the part of the estate accruing to them passes to them immediately upon inheritance (death of the testator).

Although the claim to the compulsory portion also arises at the same time as the inheritance, it must be actively asserted by the person entitled to the compulsory portion against the group of heirs. In terms of its content, the right of inheritance is directed to all items of the estate, e.g. including real estate, which were part of the deceased’s assets at the time of inheritance. The right to a compulsory portion, on the other hand, is only aimed at payment in money.

How do I assert my claim to a compulsory portion and against whom?

The claim to the compulsory portion is asserted against the heirs. They assume the legal status of the testator by way of universal succession. Like any claim under the law of obligations, the right to a compulsory portion is subject to the statute of limitations. In accordance with Section 2317 BGB, it is subject to the standard limitation period of three years. This begins at the end of the year in which the beneficiary of the compulsory portion learns of the occurrence of the inheritance and the non-inclusion as an heir or should have been aware of this if due diligence had been exercised.

How do I know what I am entitled to as a compulsory portion?

As they are not part of the heirs, those entitled to a compulsory portion are often excluded from a more precise knowledge of the estate. This leads to the difficulty that, from their perspective, the compulsory portion claim cannot be precisely quantified.

For this reason, the right to a compulsory portion is accompanied by a right to information vis-à-vis the heirs in order to remedy this imbalance in knowledge. The heirs must draw up a detailed inventory of the estate. If the beneficiary of the compulsory portion has doubts about the accuracy and completeness of this estate inventory, he or she can demand that the heirs affirm its accuracy in lieu of an oath.

The beneficiary of the compulsory portion can demand that the heirs commission an expert to value the estate assets in order to ensure that the amount of the compulsory portion claim is correctly determined.

If the beneficiary of the compulsory portion is dependent on the judicial enforcement of the claim to the compulsory portion, this is usually done by way of a step-by-step action. The first stage involves enforcing the right to information. At the second stage, an action is then brought for the compulsory portion claim, which can be calculated on the basis of the information previously received.

You might also be interested in:

• What Types of Last Will and Testament Are there in Germany?
• What happens if I suddenly pass away without a will?
• Statutory succession under German law