First of all: the correct German term is “Erbfolge”.
Many people search for the “Erbreihenfolge” (literally “order of inheritance”) – what they mean is statutory succession (gesetzliche Erbfolge). Only this term is legally correct and enshrined in the German Civil Code (Bürgerliches Gesetzbuch, BGB) (Sections 1922 et seq. BGB). “Erbreihenfolge” is a colloquial coinage: understandable, but out of place in wills, court pleadings or in dealings with the probate court (Nachlassgericht).
“Erbreihenfolge” or “Erbfolge”? The correct term
It is understandable that the word “Erbreihenfolge” persists so stubbornly. The law does in fact work with a ranking: first the children, then the parents and siblings, then the grandparents. “Order” captures the matter intuitively.
Nevertheless, the only legally correct term is Erbfolge (succession). It covers both: statutory succession, which applies if there is no will, and testamentary succession (gewillkürte Erbfolge), which is based on a will or an inheritance contract. The related technical terms confirm this too – Vorerbfolge (prior succession), Nacherbfolge (subsequent succession), Erbfolge von Todes wegen (succession upon death). The root word is always “Erbfolge”, never “Erbreihenfolge”.
The difference is more than hair-splitting:
- Erbfolge (succession) means the entire transfer of the assets to the heirs – who inherits, in what amount and with which rights and obligations.
- “Erbreihenfolge” suggests that it is merely about a sequence of persons. In fact, however, inheritance law also governs shares, communities of heirs, liability for the debts of the estate and compulsory share claims.
In practice, this means: anyone speaking to a notary, a lawyer or the probate court, or applying for a certificate of inheritance (Erbschein), should speak of Erbfolge. In everyday conversation, “Erbreihenfolge” does no harm – you should simply know that it is the colloquial variant. In the rest of this article, the term “order of succession” is therefore used in the sense of statutory succession.
What does the order of succession mean?
The order of succession describes the rules according to which the estate of a deceased person is distributed among the heirs. It determines which persons are entitled to inherit, in which order and to what extent. This becomes relevant above all if the deceased left neither a will nor an inheritance contract.
German inheritance law is based on a system of orders (Ordnungen) that divides the relatives of the deceased into groups. The closer a relative is to the deceased, the higher their priority. Spouses and registered civil partners have a special position: they are not related to the deceased, but nevertheless inherit – alongside the relatives.
The statutory distribution can be changed by testamentary dispositions. In a will, the testator can largely decide freely who is to receive their estate. Without such a document, the statutory rules apply.
The statutory order of succession at a glance
The statutory rules on the estate distinguish between different orders of heirs. A strict principle of priority applies: as long as an heir of a higher-ranking order is alive, lower-ranking orders do not come into play at all.
- First order (Section 1924 BGB): the direct descendants of the deceased – children, grandchildren, great-grandchildren. Children inherit in equal shares. A child who has already died is replaced by their own descendants (principle of representation).
- Second order (Section 1925 BGB): the parents of the deceased and their descendants, i.e. siblings, nieces and nephews. They only inherit if there are no heirs of the first order.
- Third order (Section 1926 BGB): grandparents and their descendants, i.e. among others uncles, aunts and cousins.
- Further orders: great-grandparents and more distant relatives. If no one can be found, the state ultimately inherits (Section 1936 BGB).
Spouses and registered civil partners are treated separately. Their share depends on the matrimonial property regime and on which relatives inherit alongside them:
| Constellation | Statutory share of the spouse (community of accrued gains) |
| alongside heirs of the 1st order (children) | 1/2 (1/4 statutory + 1/4 flat-rate equalisation of accrued gains) |
| alongside heirs of the 2nd order or grandparents | 3/4 (1/2 + 1/4) |
| no relatives of the 1st/2nd order, no grandparents | sole heir |
Will and order of succession
A will enables the testator to deviate from statutory succession and to distribute the estate according to their personal wishes. It can also provide for persons who would not be entitled to inherit by law – for example friends, unmarried partners or charitable organisations. For unmarried partners in particular, a will is practically indispensable, because they go away empty-handed under the statutory rules.
A will must meet strict formal requirements. It can be made by hand or notarised. A handwritten (holographic) will must be written entirely by hand, signed and, sensibly, include the place and date (Section 2247 BGB). A will written on a computer and merely signed is invalid – statutory succession then applies again.
A will can completely displace the statutory distribution. However, the compulsory share (Pflichtteil) of certain close relatives remains unaffected.
Order of succession and compulsory share
The law on compulsory shares supplements statutory succession and guarantees certain relatives a minimum participation in the value of the estate. Under Section 2303 BGB, the following are entitled to a compulsory share:
- descendants (children, or alternatively grandchildren),
- the spouse or registered civil partner,
- the parents – but only if the deceased has no descendants.
Siblings, nieces, nephews and more distant relatives have no compulsory share claim.
The compulsory share amounts to half of the value of the statutory share of the inheritance and is purely a monetary claim against the heirs – the person entitled therefore does not become a co-owner of real estate or objects. It generally falls due when the succession occurs; the limitation period is three years from knowledge.
A withdrawal of the compulsory share is only possible in narrowly defined exceptional cases (Section 2333 BGB), for example in the event of an attempt on the life of the deceased or a final conviction resulting in a longer prison sentence for an intentional criminal offence. The ground must be specifically stated in the will and must exist at the time the will is made. Mere estrangement or years of broken-off contact are not sufficient.
Compulsory share claims regularly lead to conflicts, especially when the assets are mainly tied up in a property or a business and the heirs have to raise liquidity. Careful estate planning is therefore crucial.
Order of succession and estate planning
Statutory succession forms the basis of all estate planning – even if you wish to deviate from it. If you know what would happen without a will, you can decide in a targeted way whether and how to intervene.
The main planning instruments are the will and the inheritance contract (Erbvertrag), which, unlike a will, is binding and must be notarised. Married couples often use the Berlin will (Berliner Testament, a joint will of spouses), in which they appoint each other as sole heirs and the children only inherit after the death of the surviving spouse – although the children’s compulsory share claims must be taken into account on the first death.
Tax aspects are also part of this. Inheritance tax depends on the degree of kinship and the value of the estate; the personal tax allowances range from 500,000 euros for spouses and 400,000 euros per child down to 20,000 euros for more distant persons. Tax allowances can also be used again every ten years.
Lifetime gifts influence the later distribution: they reduce the estate but can have an after-effect via the claim to a supplement to the compulsory share (Pflichtteilsergänzungsanspruch). Gifts made within the last ten years before the death are taken into account on a pro rata basis – decreasing by one tenth with each year. For gifts to the spouse, this period only starts to run when the marriage is dissolved.
Frequently asked questions
Statutory succession then applies. The estate is distributed according to the orders of the BGB among the relatives entitled to inherit and the spouse.
Descendants, the spouse or registered civil partner and – only if there are no descendants – the parents. The compulsory share amounts to half of the statutory share of the inheritance and is paid out in money.
Yes, by a will or an inheritance contract. These can also provide for persons who would not be entitled to inherit by law. However, the compulsory share of close relatives remains.
They reduce the estate but can give rise to claims to a supplement to the compulsory share. Gifts made in the last ten years before the death are taken into account at a value that decreases each year.
That depends on the matrimonial property regime and on the relatives inheriting alongside the spouse. Under the community of accrued gains, the spouse inherits half alongside children, and three quarters alongside heirs of the second order or grandparents.
