What happens if there is no valid will? Often, an estate is divided among several heirs, which can lead to conflict. This article examines the legal order of inheritance and shows how disputes among heirs can be avoided.
There’s a saying: ” You only see a person’s true character when there’s something to inherit .” Without a valid will, the statutory rules of inheritance, as regulated in the German Civil Code (BGB), apply. In practice, however, the distribution of an estate often leads to disputes, especially in blended families, with children born out of wedlock, or in complex family situations. When several people inherit jointly, an estate community is formed, which frequently leads to disagreements about how valuable items or assets should be divided.
The classic order of inheritance in Germany
If no will is left, the statutory rules of inheritance automatically apply. These rules determine who is entitled to the inheritance and in what order. However, it is often difficult for surviving relatives to understand why certain people inherit more or less. The law, however, makes no distinctions based on emotional ties or personal history, but decides solely according to the degree of kinship and statutory regulations.
Interestingly, over half of all inheritances in Germany are settled without a will. The German Civil Code (BGB) describes in detail who is entitled to inherit and in what order. However, it does not take into account the diverse family constellations common today, such as blended families, same-sex partnerships, or cohabiting couples. Only registered spouses or civil partners are entitled to inherit. An example illustrates this:
Avoiding conflicts within the community of heirs
To avoid disputes among heirs, it is helpful to make clear agreements. Conflicts often arise from differing ideas about the value and division of the estate. ” One way to avoid these disputes is a so-called partition auction or an orderly dissolution of the community of heirs ,” says lawyer István Cocron of the Cocron law firm.
In summary, the statutory order of inheritance is clearly structured, but often insufficient to adequately address individual family circumstances. To ensure one’s wishes are carried out and potential disputes are avoided, it is advisable to draw up a will in good time.
Inheritance share and marital property regime: Who inherits how much?
If there is no valid will, the statutory matrimonial property regime determines how the deceased’s assets are distributed. The chosen regime – whether community of accrued gains, community of property, or separation of property – significantly influences how the inheritance is divided between the spouse, children, and other heirs. Approximately 90 percent of married couples in Germany live under a community of accrued gains regime, as this is the default legal arrangement if no other agreement has been made.
Heirs in a community of accrued gains
The community of accrued gains stipulates that all assets acquired during the marriage are considered accrued gains of the surviving spouse upon death. Therefore, in the event of death, the surviving spouse automatically receives an increase in their inheritance share of 25 percent of the total assets. This means:
• In the case of an only child : The spouse receives half of the estate, the child the other half.
• If there are two children : Each child receives a quarter of the estate, while the spouse inherits half.
This lump-sum increase in the inheritance share is known as “equalization of accrued gains” and ensures that the surviving partner is financially secure, even if there are children who are also entitled to inherit.
Inheritance in a separation of property regime
If the spouses have agreed to a separation of property, the division of assets is handled differently. In this case, there is no automatic increase in the surviving spouse’s share of the inheritance. Instead, the assets are divided equally among the heirs.
• In the case of an only child : The surviving spouse and the child each share half of the inheritance.
• In the case of two children : Each heir, including the spouse, receives one third of the estate.
Separate property means that the surviving spouse does not benefit from any additional increase in their inheritance. This arrangement ensures an equal distribution of assets, regardless of whether they were acquired during the marriage.
Inheritance in a community of property
In contrast, under a community property regime, all assets belong jointly to both spouses. Upon death, the surviving spouse generally receives a fixed share, while the remainder of the assets is divided among the children or other heirs.
The advantage: A special inheritance right for the spouse.
Regardless of the chosen marital property regime, the surviving spouse is entitled to the so-called “advance share.” This includes all items belonging to the marital household—from furniture and kitchen appliances to everyday household items. Even the jointly owned car can be included, provided it is considered part of the household. The advance share ensures that the surviving spouse can continue to run the household as usual and is not disadvantaged by the inheritance.
The preferential share is particularly important when, in addition to the spouse, the deceased’s parents or grandparents also inherit. In such cases, the surviving partner’s entitlement to the preferential share can increase their inheritance by providing them with additional household items that are not part of the estate.
The marital property regime determines the distribution of a spouse’s inheritance. Community of accrued gains protects the surviving spouse by increasing their share of the inheritance, while separation of property distributes the assets equally. Community of property guarantees a fixed share. The “advance” provision includes household items to provide security for the surviving spouse. Timely planning helps avoid conflicts.
Inheritance law in divorce and blended families: What ex-partners and children can expect
German inheritance law contains complex rules for inheritance cases in families with various relationship and divorce situations. Who inherits when a spouse dies, and how are ex-partners and children from previous relationships legally protected?
The impact of divorce on inheritance law
Generally, a divorce extinguishes the inheritance rights of the former spouse. This means that as soon as the divorce petition is filed and the legal requirements for a divorce are met, the spouse’s inheritance rights cease. However, if the divorce was not finalized or was in an early stage, the inheritance rights may still exist.
Blended families: Inheritance rights for children from previous relationships
Inheritance law for blended families is governed by clear legal regulations. Children from previous marriages or relationships are entitled to inherit, but this only applies to the deceased’s biological or adopted children. Children of the partner from other relationships, who may even have lived in the deceased’s household, receive nothing from the inheritance. This often creates a challenge in blended families, where the bonds between partners and their children are close.
Entitlement to maintenance after the death of the ex-Partner
In certain cases, a former partner has a claim to maintenance from the heirs of the deceased if the deceased partner was legally obligated to provide support during their lifetime. This claim is limited to the compulsory share, which amounts to a maximum of half of the statutory share of the inheritance.
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Clear regulations for children born in and out of wedlock
German inheritance law no longer distinguishes between children born in and out of wedlock when it comes to statutory succession. All biological children of a deceased person have a right to inherit, regardless of their birth status. Even unborn children conceived at the time of the parent’s death are considered entitled to inherit.
German inheritance law clearly regulates blended families and divorced couples, but sometimes leads to surprising results. Ex-partners usually do not inherit, but may be entitled to maintenance payments under certain circumstances. ” All biological children are entitled to inherit, while stepchildren receive nothing. A will provides clarity and allows for individual estate planning, especially in blended families or after a divorce, ” says lawyer Cocron.
Inheritance rights for adopted and stepchildren, as well as compensation obligations for previous payments and care services.
German inheritance law takes into account various family constellations, but special regulations apply in particular to adopted and stepchildren. Furthermore, previous financial contributions or care services may lead to equalization obligations among the heirs.
Adopted children and their inheritance rights
Adopted children have the same legal rights as biological children and therefore the same inheritance rights. If a deceased person has adopted a minor child, that child inherits like biological descendants. Should an adopted child die, the statutory rules of inheritance apply, and the estate passes to the adopted child’s family – such as the adoptive parents or siblings.
Stepchildren and inheritance
Stepchildren are generally excluded from statutory inheritance rights, even if they grow up in the deceased’s family like their own children. Even if a stepchild considers the deceased their “father” or “mother,” there is no entitlement to inheritance unless the child was adopted or explicitly named in a will.
Grandchildren and great-grandchildren in the line of inheritance
If the deceased had children who predeceased him, their children – that is, the grandchildren or great-grandchildren – inherit the share that would have been due to the deceased child.
Compensation obligations for previous financial contributions
If a child has already received a substantial financial gift from the deceased during their lifetime, they may be obligated to compensate the other heirs upon the testator’s death. Such gifts could include, for example, large sums of money for a car, an apartment, or specialized education. This obligation to compensate is intended to ensure a fair distribution of the inheritance and prevent any one child from being disproportionately favored.
Care benefits and inheritance settlement
Children or other relatives who cared for the deceased may, under certain circumstances, claim a larger share of the inheritance. However, this claim only exists if the care provided had a significant impact on the deceased’s quality of life and went beyond the usual level of care.
“ German inheritance law establishes clear structures for estates, but special regulations for adopted and stepchildren, as well as obligations to compensate for previous gifts and care services, require attention. A will can help to regulate the estate individually and fairly and avoid potential conflicts, ” explains lawyer István Cocron.
Inheritance settlement: Focus on gifts, endowments and care
German inheritance law includes provisions for the equalization of gifts that a testator made to an heir during their lifetime. These equalization obligations are intended to ensure a fair distribution of the inheritance by taking into account previous financial support or care services.
Contributions subject to compensation
Certain gifts are subject to equalization and must be taken into account when dividing the inheritance. These include, in particular:
• Income subsidies and training costs : Subsidies for vocational training are generally not subject to equalization, unless they are exceptionally high and place a heavy burden on the testator’s assets.
• Assets : Payments or assets given to children as a start-up aid, for example when moving out or starting a business, are subject to legal equalization. This includes money, real estate, or tangible assets intended for their start in life.
• Other gifts : Gifts such as clothing or small amounts of money are not normally subject to equalization unless the testator has stipulated this in writing.
Example of compensation
If a child was given a substantial sum of money during the owner’s lifetime to purchase real estate, this gift must be taken into account in the inheritance. When calculating the estate, the value of the property at the time of the gift is used; subsequent increases in value are irrelevant.
Care benefits and inheritance settlement
Care services provided by an heir to the deceased can also play a role in the division of the estate. ” Since 2010, there has been a legal entitlement to compensation if the care provided went beyond the usual scope and contributed significantly to preserving the deceased’s assets, ” explains lawyer Cocron.
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No general obligation to compensate
Not every heir is entitled to compensation. Only direct descendants and grandchildren are entitled to inherit. Spouses and other relatives such as siblings or parents cannot assert claims for compensation. Furthermore, increases in value of assets subject to compensation, such as real estate, are not taken into account to ensure an objective calculation.
German inheritance law offers a way to consider gifts and caregiving services during the distribution of the estate through equalization obligations, thus ensuring fairness. Nevertheless, the topic remains prone to conflict, which is why early planning by the testator is recommended. A will or a clear written statement made during one’s lifetime can prevent disputes among heirs and shape the estate according to individual wishes.
