GERMANY Law and Practice Contributed by: Tanja Schienke-Ohletz, Flick Gocke Schaumburg
Surrogate Children (Children Born to Surrogate Mothers) German law does not recognise surrogacy. Legal parenthood is determined by the law of descent. The woman who gave birth to the child is the mother; the intended parents can only be recognised as parents through adoption. Without adoption, there is no legal
as a legal entity under German law. The type compari- son serves this purpose: if the trust corresponds in its structure to a foundation or special-purpose fund, it can be treated as subject to corporation tax. If the trust is revocable and the settlor has secured extensive rights, the trust is generally not considered to be subject to corporation tax. 11. Planning for Non-Traditional Families 11.1 Succession Rights and Estate Taxes for Non-Traditional Families German inheritance law and inheritance tax treat same-sex spouses, adopted children and children born out of wedlock in the same way as opposite-sex spouses and legitimate children. However, there are special provisions for unmarried partners, surrogate children and posthumously conceived children. Same-Sex Spouses and Registered Civil Partners Same-sex partners can now also marry. Therefore, there are no longer any differences. They inherit legally as spouses and fall into tax class I, with the highest allowance and the lowest tax rates. This also applies to registered civil partners, provided that the civil part- nership has not been converted into a marriage. Unmarried Partners Unmarried partners are not privileged in either inher- itance law or inheritance tax law. They are not legal heirs and must be included in a will. For inheritance tax purposes, they are treated as strangers (tax class Since 1998, children born out of wedlock have been treated equally to children born in wedlock, in terms of inheritance law, and have the same legal right to inherit. Adopted Children Adopted children are treated equally to biological chil- dren in terms of inheritance law and inheritance tax law; in inheritance tax law, this also applies to step- children (but not in inheritance law). III, allowance of EUR20,000). Children Born Out of Wedlock
right to inheritance or tax privileges. Posthumously Conceived Children
Children conceived by artificial insemination after the death of the father are entitled to inherit if paternity is
recognised under German descent law. 11.2 Conflicts and Divergent Laws
Conflicts can arise in cross-border estate planning when family relationships are recognised differently in different legal systems. This occurs most frequently in relation to marriage contracts or inheritances. Ger- many primarily regulates such conflicts through Euro- pean regulations on inheritance law and matrimonial property law. The provisions of the European regulations specify which national law applies to family law issues such as the validity of a marriage and matrimonial property law. According to this regulation, the following generally applies: • choice of law – spouses may choose the matri- monial property law of a country of which one of the spouses is a national, or in which one of the spouses has their habitual residence; and • without choice of law – as a rule, the law of the first common habitual residence after marriage applies – or alternatively the law of the common nationality or the law of the country with which the spouses are most closely connected. In inheritance matters, cross-border conflicts within the EU are largely governed by the EU Succession Regulation. This regulation generally applies the law of the deceased’s last habitual residence to the entire estate. It also allows individuals to choose the law of their nationality for estate planning purposes. This framework helps to ensure that the definition of heirs
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