An 85-year-old man appoints his two mistresses as his heirs; his wife and children are left empty-handed. Then one of the two women disclaims the inheritance. At this moment, many relatives hope for belated justice. Inheritance law, however, follows its own logic – that of accrual (Anwachsung).
The case
Heinrich M. dies at the age of 85. He was married and has two adult children. In a handwritten (holographic) will he stipulates: “My heirs in equal shares are Ms A. and Ms B.” Both women had been his mistresses for years. The will contains no further provisions. His wife and children are not mentioned. The estate amounts to €1,200,000.00.
After the will is opened, Ms B. is plagued by a guilty conscience. She does not want to “take anything away” from the family and disclaims the inheritance within the time limit. The wife now wonders: does the half that has become free pass to her and the children?
Is a “mistress will” valid at all?
In principle, yes. Freedom of testation applies: everyone may freely decide who inherits from them. As early as 1970, the Federal Court of Justice (BGH) ruled that a will is not immoral and void merely because there was an extramarital relationship between the testator and the beneficiary. The gift is only invalid in exceptional cases, for example if it is intended solely as a reward for sexual favours. The testator’s advanced age alone does not change this either. The only decisive factor is whether he had testamentary capacity when making the will, i.e. whether he was able to grasp the implications of his dispositions.
What is the effect of the disclaimer?
Anyone who disclaims is treated as if they had never become an heir (Section 1953 of the German Civil Code (BGB)). The disclaimer must be declared to the probate court (Nachlassgericht) within six weeks (Sections 1944, 1945 BGB). Important: there is no such thing as a disclaimer “in favour of” particular persons. The person disclaiming cannot determine who receives her share. Where the share of the inheritance goes is governed by law alone.
The examination in three steps: substitute heir, accrual, exclusion
- Substitute heir: Did the testator name a substitute heir (Ersatzerbe) in the event that one of the heirs drops out (Section 2096 BGB)? A substitute heir takes precedence over all other solutions. In this case, none has been named. The statutory presumption that the descendants of an heir who drops out take their place (Section 2069 BGB) does not help here. It only applies if one of the testator’s own descendants drops out, not a mistress.
- Accrual: This is where Section 2094 BGB applies. If the testator has appointed several persons as heirs in such a way that together they receive the entire estate and statutory succession is excluded, and one of them drops out, that person’s share accrues to the remaining heirs. “Accrual” means: the share of the heir who has dropped out increases the shares of those who remain.
- Exclusion of accrual: The testator can expressly exclude accrual (Section 2094(3) BGB). Heinrich M. did not do so.
Outcome
Ms A. becomes sole heir to the entire estate. The statutory heirs do not move up. Ms B.’s feeling of doing good is thus turned on its head: her disclaimer does not help the family but exclusively benefits the other mistress.
Only if Ms A. also disclaimed, or if accrual had been excluded, would statutory succession apply. The wife and children would then inherit.
What is left for the family? The compulsory share despite the will
The wife and children retain their compulsory share (Pflichtteil). This is a monetary claim against the heir amounting to half of the statutory share of the inheritance (Section 2303 BGB). The disclaimer does not change its amount, because the compulsory share is calculated on the basis of the entire estate anyway. If the spouses lived under the statutory matrimonial property regime, the wife can additionally claim equalisation of the accrued gains (Zugewinnausgleich). In addition to the equalisation, she then receives the so-called “small” compulsory share (Section 1371(2) BGB), i.e. a compulsory share without the flat-rate increase for spouses.
What does this mean?
- A disclaimer for reasons of conscience as a rule benefits the co-heirs, not the family.
- The person disclaiming cannot control who receives her share.
- The relatives’ compulsory share remains the same, no matter who ultimately becomes heir.
How to proceed
- First check the wording of the will: is there a substitute heir or an exclusion of accrual?
- Anyone who actually wants the family to receive something must not disclaim. They must accept the inheritance and then pass on what they have received, for example by transferring their share of the inheritance (Section 2033 BGB, notarisation required) or by way of a gift. In doing so, the inheritance and gift tax consequences, which may arise twice, must be taken into account.
- Relatives should assert their compulsory share and, where applicable, the equalisation of accrued gains promptly and, to this end, first demand information about the estate.
Frequently asked questions: accrual, disclaimer and compulsory share
This is governed by law alone. A substitute heir named in the will takes precedence (Section 2096 BGB). If there is none and several heirs together have received the entire estate, the share of the person disclaiming accrues to the remaining heirs (Section 2094 BGB). The statutory heirs only come into play if all appointed heirs drop out or accrual has been excluded.
Accrual means: the share of an heir who has dropped out increases the shares of the remaining heirs (Section 2094 BGB). It applies if the testator has appointed several persons as heirs in such a way that together they receive the entire estate, and has not expressly excluded accrual. A named substitute heir takes precedence over accrual.
No. There is no such thing as a disclaimer “in favour of” particular persons. Anyone who wants the family to receive something must accept the inheritance and then pass on what they have received, for example by a notarised transfer of their share of the inheritance (Section 2033 BGB) or by way of a gift.
In principle, yes. An extramarital relationship does not make a will immoral. The gift is only invalid in exceptional cases, for example if it is intended solely as a reward for sexual favours. What matters is whether the testator had testamentary capacity when making the will.
A wife and children who are passed over in the will retain their compulsory share. The disclaimer does not change its amount: the compulsory share is half of the statutory share of the inheritance and is calculated on the basis of the entire estate, regardless of who ultimately becomes heir. Under the statutory matrimonial property regime, the wife can additionally claim equalisation of the accrued gains and, alongside it, the “small” compulsory share.
Rechtsanwalt Cocron GmbH & Co. KG, Munich and Berlin, advises throughout Germany on wills, disclaiming an inheritance and the compulsory share.
