Many families in Germany regulate their estate planning using a Berlin Testament. At first glance, this model seems fair: The spouses appoint each other as sole heirs, while the children only inherit after the death of both parents. However, what is often overlooked is that those who claim their compulsory share after the first death may, under certain circumstances, completely lose their claim to the later inheritance.
A ruling by the Higher Regional Court of Zweibrücken dated July 9, 2025 (Case No. 8 W 56/24) has once again highlighted this problem and illustrated the significant consequences that a hasty decision can have.
The Berlin Testament and its popularity
The Berlin Testament is the most frequently chosen form of joint will by married couples in Germany. In this arrangement, the spouses appoint each other as sole heirs and designate their children as final heirs after the death of the last surviving spouse. The aim is to provide financial security for the surviving partner and to protect them from conflicts with the children.
However, there is a tension: after the death of the first parent, children have a legal right to their compulsory share, i.e., half of their legal inheritance in money. This right exists regardless of the provisions in the will. Many children are aware of this right and consider exercising it early – often for financial reasons.
For this reason, notaries and lawyers regularly advise including so-called penalty clauses for compulsory shares in the Berlin Testament. These laws stipulate that a child who claims their compulsory share after the first death will either be completely disinherited upon the second death or will only receive their compulsory share again. As a result, this usually means that the child receives less overall than originally planned.
Such clauses are legally permissible and are generally recognized by the courts. Their purpose is to protect the surviving spouse from being confronted with financial claims immediately after the loss of their partner.
The decision of the Higher Regional Court of Zweibrücken: When does the penalty clause apply?
The decision of the Higher Regional Court of Zweibrücken of July 9, 2025 (Case No. 8 W 56/24) illustrates how quickly such a penalty clause can be triggered.
In the case at hand, the parents had written a joint, handwritten will with a corresponding clause. After the father’s death, a daughter, through a lawyer, requested information about the estate and claimed her compulsory share. The mother accepted the claim and paid voluntarily, without any legal dispute arising.
Later, the question arose whether the daughter had activated the penalty clause through this action – with the consequence that she would no longer be considered an heir after the death of her mother.
The court unequivocally affirmed this: The unilateral and confrontational assertion of the compulsory share, for example by means of a lawyer’s letter, is sufficient. The fact that the payment was voluntary and no legal proceedings took place was irrelevant.
The Higher Regional Court also clarified that neither an explicit rejection by the surviving spouse nor a legal dispute is required. The decisive factor is solely the manner in which the claim is asserted.
Who is affected by this decision?
The decision particularly affects adult children whose parents have drawn up a Berlin Testament with a penalty clause for claiming a compulsory share and where one parent has already died. This constellation is widespread in Germany.
Anyone in this situation considering claiming their compulsory share – for example, for financial reasons or because they do not want to wait until the second inheritance – should be aware of the possible consequences. An ill-considered approach can lead to the loss of the right to a future inheritance.
Was bedeutet „gegen den Willen“ – und wo liegt die Grenze?
Many penalty clauses regarding compulsory shares use formulations such as “against the will” of the surviving spouse. However, the Higher Regional Court of Zweibrücken clarified that this wording is to be interpreted broadly.
An explicit refusal by the surviving parent is not necessary. It is sufficient for the child to take action – for example by hiring a lawyer and asserting the claim – without first seeking an amicable solution.
In contrast, a prior, clearly documented agreement with the surviving parent, in which the latter consents to the enforcement, may prevent the penalty clause from being applied. Whether this succeeds in individual cases depends heavily on the specific wording of the clause and cannot be assessed in general terms.
A common misconception: Voluntary payment offers no protection.
A widespread misconception is that the penalty clause does not apply if the surviving parent pays the compulsory share voluntarily anyway.
However, the Higher Regional Court of Zweibrücken clearly rejected this argument. The purpose of the clause is to protect the surviving spouse from confrontational claims. Whether he ultimately pays or not is irrelevant to the question of triggering the payment.
The decisive moment is when the claim is asserted in a one-sided and conflict-oriented manner.
Options for action: What possibilities do those affected have?
Anyone considering claiming their compulsory share in this situation should first carefully examine:
First, it must be clarified whether the will even contains a valid penalty clause for claiming a compulsory share. Not every formulation is unambiguous or legally sound.
Before sending a letter from a lawyer, it is advisable to first seek a personal conversation with the surviving parent and – if possible – to record an amicable solution in writing. This can reduce the risk.
Furthermore, an economic assessment should be made: Anyone who demands their compulsory share now and thereby potentially loses their later inheritance may be acting in a financially disadvantageous way – unless there are special circumstances that justify it.
Conclusion: Claiming your compulsory share in a Berlin Testament should only be done with legal advice.
The decision of the Higher Regional Court of Zweibrücken impressively demonstrates the far-reaching consequences that a seemingly simple step can have. Bereits ein anwaltliches Aufforderungsschreiben kann ausreichen, um die Pflichtteilsstrafklausel auszulösen und den Anspruch auf das spätere Erbe zu verlieren – selbst bei freiwilliger Zahlung.
Anyone in such a situation should therefore under no circumstances act without legal advice. Whether a clause is effective, how it should be interpreted, and what course of action is advisable always depends on the individual case.
Compulsory share in a Berlin Testament? Have it legally reviewed now!
The decision of whether and how to assert your compulsory share of the inheritance can have significant financial consequences. The law firm Cocron Rechtsanwälte, with offices in Munich and Berlin, provides individual advice on inheritance law – from reviewing your will to securely enforcing your claims. Further information at www.ra-cocron.de.
Frequently asked questions about the penalty clause for disinheritance in the Berlin Testament
What is a penalty clause for claiming a compulsory share of the inheritance in a Berlin Testament?
This is a regulation according to which a child who claims their compulsory share after the first death is disadvantaged in the second inheritance case – for example by disinheritance or restriction to the compulsory share.
Does the surviving parent have to refuse payment for the clause to apply?
No. According to the Higher Regional Court of Zweibrücken, the unilateral assertion of the claim is sufficient, even without an express rejection or court proceedings.
Can I claim my compulsory share without triggering the clause?
This is possible in individual cases, for example with the prior consent of the surviving parent. However, this depends on the specific will and should be reviewed by a lawyer.
Does the clause also apply to grandchildren?
That depends on the wording of the will. The effect often extends to the offspring as well.
What happens if I trigger the clause?
In this case, it is possible that in the second inheritance you will only receive the compulsory share and not the originally intended share of the inheritance. Subsequent corrections are generally not possible.
