Can I disinherit someone? What is disinheritance?

German inheritance law offers testators the option of testamentary freedom. This means that testators can choose between intestate succession (LINK) and voluntary succession. By means of a will or contract of inheritance, testators can determine how their assets are to be distributed in the event of their death, within the legal limits. This includes the option of deliberately excluding a person from the succession. The disinheritance of a person who would be an heir according to statutory succession can be achieved by not mentioning them in the will or inheritance contract or by expressly excluding them. However, it should be noted that a certain group of people among those who are included in the statutory succession are also entitled to a compulsory portion in the event of disinheritance. This amounts to half of the statutory inheritance entitlement (Sections 1924 ff BGB). The answer to the question “Can I disinherit someone?” is basically yes. As German inheritance law is extremely complex, testators should seek advice from a specialist lawyer.

Disinheritance: How can I disinherit someone?

In principle, only persons who would inherit according to intestate succession can be disinherited. If a testator wishes to exclude one or more persons from intestate succession, this can be done by drawing up a will or an inheritance contract. There are two different ways to disinherit persons who are entitled to inherit according to intestate succession:

The explicit disinheritance

In the case of explicit disinheritance, the will specifically states which person should not inherit. This form of disinheritance is also known as a “negative will”.

Example: “I disinherit my son Max Mustermann.”

Important: With the wording chosen above, it should be borne in mind that Max Mustermann’s children (if he has any) will also be disinherited. If the grandchildren are not to be disinherited, but only the son himself, the following wording should be chosen, for example:

“I disinherit my son Max Mustermann. However, my granddaughter Maxima Mustermann shall not be disinherited.”

The implied disinheritance

Implied disinheritance is also known as “disinheritance by omission”. In this case, one or more persons in the intestate succession are not named in the will or inheritance contract, while other persons are expressly mentioned as heirs.

Example: “My wife Mara Mustermann and my granddaughter Maxima Mustermann shall inherit in equal shares.”

Here, the wife and granddaughter are expressly named as heirs. The son is not mentioned and thus implicitly excluded from the succession.

Reasons for disinheritance: On what grounds can I disinherit a person?

If testators wish to disinherit one or more persons who are entitled to inherit according to the statutory order of succession, no reasons for the disinheritance need to be included in the will or inheritance contract. This is certainly true from a legal point of view. However, testators should be aware that disinheritance can have emotional as well as financial consequences for the person or persons concerned. Disinheritance is a radical step. Disinheritance can be reversed as long as the will or inheritance contract can still be changed. However, if the disinheritance has already been communicated within the family circle, the emotional injury remains even if the disinheritance is later reversed.

Testators should discuss with a specialist lawyer whether and in what form reasons for disinheritance can be communicated to the person or persons who are to be disinherited.

Mandatory portion in the event of disinheritance: when is there such a claim and how high is it?

German inheritance law gives testators a great deal of freedom to organize their estate according to their wishes. However, German inheritance law also sets limits to this freedom. These include the regulation on the so-called compulsory portion. The basis for the regulations on the compulsory portion can be found in Section 2303 of the German Civil Code (BGB). The right to a compulsory portion does not apply to all persons who would be entitled to inherit according to the statutory order of succession, but only to close relatives.

Mandatory portion: Who is entitled to it?

The following groups of people are entitled to a compulsory portion:

• Spouses: If the marriage is divorced or deemed to have broken down, there is no entitlement to a compulsory portion.
• Partners from registered partnerships: If the registered partnership is divorced or deemed to have failed, there is no entitlement to a compulsory portion.
• Children of the testator(s): The right to a compulsory portion applies equally to legitimate and illegitimate as well as natural and adopted children.
• Grandchildren under certain circumstances: Grandchildren are only entitled to a compulsory portion if there are no living children of the deceased at the time of inheritance or if they have been deprived of their right to a compulsory portion for special reasons.
• Under certain circumstances, the parents of the deceased: The parents of the deceased are only entitled to a compulsory portion if the deceased had no children or if they are already deceased.

Mandatory portion in the event of disinheritance: How high is this entitlement?

The amount of the compulsory portion is regulated in Section 2303 BGB. According to this, it is half of the share to which the person would be entitled according to the order of succession if no disinheritance had been made.

Example: A testator whose husband has already died had two children: a son and a daughter. The mother (testator) expressly disinherited the son in her will and appointed the daughter as her sole heir. Without the disinheritance, the son would have been entitled to half of the inheritance. Due to the disinheritance, he is only entitled to half of this claim, so his compulsory portion claim amounts to a quarter of the inheritance.

How long does the compulsory portion last in the event of disinheritance?

The right to the compulsory portion exists from the first day after the death of the testator(s). It usually takes some time to determine the amount of the estate. Only once this has been determined is it clear how high the compulsory portion claim of the disinherited person or persons concerned is. A three-year limitation period applies to the right to a compulsory portion. This means that the beneficiary of the compulsory portion must assert the claim within three years. However, the limitation period does not begin on the date of death of the testator, but only when the disinherited person entitled to a compulsory portion learns of the inheritance. However, this period is also limited: 30 years after the occurrence of the inheritance, there are no longer any claims under inheritance law.

Ineligibility to inherit: What does ineligibility to inherit mean?

If testators wish to disinherit one or more persons, they usually want the disinherited person or persons to “go away empty-handed”. However, as explained above, close relatives are generally entitled to their compulsory portion even in the event of disinheritance. This entitlement is only waived in certain exceptional cases. The term “ineligibility to inherit” is often used here by laypersons. However, the question of unworthiness to inherit only arises after the succession has occurred. Section 2339 of the German Civil Code regulates the cases in which an ineligibility to inherit exists. The reasons listed here are exhaustive. This means that there are no other reasons that lead to the ineligibility of an heir. Other or bypassed potential heirs can assert their ineligibility by means of an action for annulment. The determination of a person’s unworthiness to inherit is therefore an assessment that takes place after the succession has occurred.

Is disinheritance with withdrawal of a compulsory portion possible?

However, there are also a few cases in which testators can exclude the right to a compulsory portion. Disinheritance with withdrawal of the compulsory portion is also regulated in the German Civil Code: in Section 2333 BGB. According to this, testators can withdraw the compulsory portion from a descendant if certain serious misconduct has been committed. In this case, the term “descendants” refers not only to children, but also to spouses, partners in registered partnerships and parents.

Unlike conventional disinheritance, the withdrawal of a compulsory portion must be explicitly regulated in the will or inheritance contract. In particular, the reasons that justify the withdrawal of a compulsory portion must be sufficiently and correctly justified. In this case, it is important that testators seek advice from a specialist lawyer.

Reasons for disinheritance with withdrawal of compulsory portion

The regulations on the right to a compulsory portion are intended to ensure that the next of kin of the deceased have a minimum share in the estate. Therefore, the substantive and formal requirements for the withdrawal of the compulsory portion are high. In principle, heirs are only not entitled to the compulsory portion if

a) there is a reason for the withdrawal of a compulsory portion,

b) the deprivation of the compulsory portion was correctly explained and justified and

c) the deceased has not forgiven the person concerned by the time of death.

The hurdles for the withdrawal of the compulsory portion are therefore very high. Possible reasons for disinheritance with withdrawal of the compulsory portion may be, depending on the individual case:

• The disinherited person has attempted to kill the testator (or a close relative) or has committed a serious offense against this person.
• The disinherited person has maliciously violated the maintenance obligations towards the testator.
• The disinherited person was sentenced to at least one year’s imprisonment without parole for a serious criminal offense.
• The disinherited person was placed in a psychiatric hospital or in a detention center by law due to a serious criminal offense.

Factual disinheritance: What do I need to bear in mind when disinheriting by gift?

Disinheritance with a compulsory portion is rarely possible due to the legal regulations. Nevertheless, there is another way for testators to at least reduce the compulsory portion: By making a gift during their lifetime, the total assets can be reduced so that the amount of the compulsory portion is also reduced in the event of death. However, there are also legal finesses to consider in this case. This primarily involves the following points:

• 10-year period: In principle, the gift of assets to another person during one’s lifetime is initially taken into account when calculating the compulsory portion. However, the amount that is taken into account is reduced by ten percent each year. After ten years, the gift is therefore completely removed from the compulsory portion.
• Exception to the 10-year period: The 10-year period does not apply to a gift to a spouse or partner in a registered partnership.

Summary

The topics of disinheritance, compulsory portion in the event of disinheritance and reasons for disinheritance are very complex. To ensure that the last will and testament is implemented in accordance with the wishes of the testator after the death of the deceased, sound advice should be obtained from a specialist lawyer. This article can only provide an initial overview of the topic, as each individual case must be assessed differently.

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