GERMANY Law and Practice Contributed by: Tanja Schienke-Ohletz, Flick Gocke Schaumburg
pulsory portion consists of half the value of the legal inheritance that the beneficiary would have received without disinheritance. Beneficiaries The following are entitled to a compulsory portion: • descendants of the testator (children, grandchil- dren if the children have predeceased the testator, etc); • the spouse or registered civil partner; and • the parents of the testator, if there are no descend- ants. Amount The compulsory portion amounts to half the value of the statutory inheritance. The starting point is the value of the estate at the time of inheritance. This can regularly lead to disputes because the beneficiary of the compulsory portion must know the value of the estate, and it is often a question of valuation as to how valuable the estate actually is. The claim is only mone- tary. A compulsory portion claim regularly encumbers illiquid assets, such as company assets, real estate or art estates. This forces the heirs who have to fulfil the claim to sell estate assets against their will, which can lead to fragmentation of the estate. Withdrawal of the Compulsory Portion There are only a few cases regulated by law in which the compulsory portion claim does not apply. The testator can only withdraw the compulsory por- tion from a beneficiary if they have committed particu- larly serious offences. In such a case, the withdrawal of the compulsory portion should be made by means of a last will and testament, and the reason must be stated therein. The testator bears the burden of proof for the circumstances. The following may justify the withdrawal of a compulsory portion: • attempting to take the life of the testator or a close relative of the testator; • being guilty of a crime or serious intentional offence against the testator or a person close to him or her; • malicious violation of the legal maintenance obliga- tion towards the testator; or
• final conviction for an intentional criminal offence with a prison sentence of at least one year with- out parole, such that participation in the estate is unreasonable for the testator; Family breakdown or severance of contact are not suf- ficient; the misconduct must go significantly beyond normal conflicts and seriously violate the family’s soli- darity. It is even possible that the compulsory portion may be revived through the testator’s forgiveness. Possibilities for Reduction A reduction of the compulsory portion is only possible within narrow limits. One possibility is lifetime gifts to other persons or donations to the beneficiaries of the compulsory portion, which are credited against the compulsory portion. Significance of the Compulsory Portion Inheritance law assumes that the right to a compul- sory portion is strictly linked to the statutory minimum share of close relatives and provides only limited pos- sibilities for reduction. Case law also reflects the high requirements for deprivation of the compulsory por- tion. Waiver of the Compulsory Portion It is permissible to waive the compulsory portion, even in exchange for compensation. This is done by means of a notarial deed and must be desired by the beneficiary of the compulsory portion. Without their co-operation, this is not possible. Limitation Period The claim to a compulsory portion is subject to the standard three-year limitation period. The period begins at the end of the year in which the claim arose and the beneficiary became aware of the circum- stances giving rise to the claim and the identity of the debtor, or should have become aware of them without gross negligence (opening of the will). The claim arises upon the opening of the succession. Assertion The claim to a compulsory portion is a monetary claim against the heir, which is asserted out of court by requesting payment; typically, information about the estate is first requested in order to calculate the
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