Those born outside of marriage whose biological father – or in rare cases, their mother – has died without naming him as an heir, often still have a legal claim: the compulsory share. However, many affected individuals are unaware that they are entitled to such a claim – or they assume that it has already expired. Especially when paternity has not yet been legally established at the time of death, the crucial question arises: When does the limitation period begin?
The Federal Court of Justice clarified this matter with its judgment of March 12, 2025 (Case No. IV ZR 88/24). The decision strengthens the rights of children born out of wedlock and also clarifies under what conditions claims are not lost due to the passage of time.
What did the Federal Court of Justice (BGH) decide?
The judgment was based on the following facts: A man died in August 2017 and appointed his registered life partner as his sole heir in his will. His illegitimate daughter learned of his death later that same year. However, since her paternity had not been legally established, she only initiated the corresponding proceedings in May 2022. On June 30, 2022, paternity was legally confirmed. In 2023, she finally filed a lawsuit demanding payment of her compulsory share of the inheritance.
The central legal question was: Is the claim already time-barred because the daughter knew about the inheritance as early as 2017, but only filed a lawsuit several years later? Or is the statute of limitations suspended by the fact that paternity has not yet been established?
The Federal Court of Justice (BGH) ruled in favor of the daughter: The three-year limitation period under Section 195 of the German Civil Code (BGB) begins in accordance with Section 199 para. Section 1 of the German Civil Code (BGB) applies only when the person entitled to the claim has obtained knowledge of all circumstances giving rise to the claim – including the legally established paternity. Without this information, the deadline does not begin.
What is the compulsory share and who is entitled to it?
The compulsory portion represents a legally secured minimum claim in inheritance law. It is due to close relatives who have been excluded from inheritance by a will. Unlike an inheritance, this is not a share of the estate itself, but a purely monetary claim against the heirs.
The following are entitled to claims according to §§ 2303 ff. of the German Civil Code (BGB):
– Children of the deceased (regardless of whether they were born in or out of wedlock),
– the spouse or registered civil partner,
– the parents of the deceased, if they have no children of their own.
The compulsory portion amounts to half of the statutory share of the inheritance. For example, someone who would have inherited a quarter of the estate without a will is entitled to an eighth as a compulsory share.
Since the inheritance law reform in 2010, children born out of wedlock are fully equal to children born in wedlock. However, the prerequisite remains that the parentage has been clearly established.
The statute of limitations trap: When the limitation period begins to run unnoticed
Pflichtteilsansprüche verjähren grundsätzlich innerhalb von drei Jahren (§ 2332 i. V. m. § 195 BGB). Die Frist beginnt mit dem Ende des Jahres, in dem der Berechtigte sowohl vom Erbfall als auch von seiner Enterbung Kenntnis erlangt. For example, anyone who learns about it in March 2022 must take action by December 31, 2025 at the latest.
However, for children born out of wedlock, a particular problem arises: they may know about the death, but are unsure whether they are legally considered children. The crucial question is therefore: Does the limitation period still begin?
The Federal Court of Justice (BGH) is reassessing the statute of limitations.
With its ruling, the Federal Court of Justice (BGH) clarifies: “knowledge” within the meaning of Section 199 para. Section 1 No. 2 of the German Civil Code (BGB) covers all circumstances giving rise to a claim. For a child born out of wedlock to be entitled to a compulsory share of an inheritance, legally established paternity is a mandatory requirement. Without this, an essential component of the claim is missing.
The limitation period does not begin to run until paternity has been established. The time limit only begins at the end of the year in which both paternity has been established and knowledge of the will has been obtained.
At the same time, the Federal Court of Justice (BGH) makes it clear that those affected must take action themselves. Anyone who delays the establishment of paternity without a justifiable reason risks legal disadvantages. The ruling offers protection, but it does not replace one’s own initiative.
Example from the decided case:
Inheritance: August 2017
• Initiation of the procedure: May 2022
Paternity determination: June 30, 2022
Start of the limitation period: December 31, 2022
Deadline: December 31, 2025
Lawsuit: 2023
The lawsuit was therefore filed in a timely manner, even though more than five years had passed since the inheritance.
Who is affected by the ruling?
The decision is relevant to a wide range of people:
– children born out of wedlock without established paternity,
– Persons whose paternity was only established after the death,
– Disinherited persons with unclear parentage,
– Heirs and executors of wills.
The number of births outside of marriage has risen significantly in Germany in recent years – many of those affected are unaware of their rights.
Deadlines and risks
The ruling provides protection, but requires personal initiative. Risks include, but are not limited to:
- rapid expiry of the deadline after determination,
- potential disadvantages of delay,
- Difficulties without legal support,
- Changes in the estate,
- Complications when there is a change of heirs.
Recommended steps:
Examine inheritance case
Establish paternity
Claiming a compulsory share
Request information
Seek legal advice
Especially in cases of inheritance that occurred some time ago, swift action is crucial.
