Many parents support their children financially during their lifetime – be it in the form of gifts, transfers, or other assets. When it comes to inheritance later, the question often arises: Must a child entitled to a compulsory share of the inheritance have such payments deducted from their share?
The legal situation is clear: Only if the testator explicitly stipulated at the time of the gift that it should be credited against the compulsory share of the inheritance can such crediting be considered. A subsequent declaration – for example, in a will – is generally insufficient.
Gifts made during one’s lifetime: When are they considered relevant to the compulsory share of the inheritance?
According to Section 2315 of the German Civil Code (BGB), a gift must be expressly linked to a provision for its crediting if it is to affect the compulsory share of the inheritance. It is also important that the person entitled to the compulsory share either knows about this provision or is at least capable of recognizing it. If there is no clear and documented instruction, the gift remains neutral with regard to the compulsory share – that is, it has no effect on the compulsory share claim.
Practical example: Dispute over previous payments
In a recent case, a daughter had already received several sums of money from her father during his lifetime. After his death, she claimed her compulsory share of the inheritance. The heirs refused payment, citing the earlier transfers.
However, the court ruled that neither the terms used on the transfer documents nor a subsequently written will proved an intended offset. Such an intention must have been clearly stated before or at the time of the gift – a subsequent declaration in a will is not legally sufficient.
What does this mean for testators and children entitled to a compulsory share?
For testators: Anyone who makes gifts to specific children during their lifetime and wishes to have these gifts credited against their compulsory share of the inheritance must declare this unambiguously and ideally in writing – preferably at the time of the gift itself . Only in this way can a subsequent reduction of the compulsory share be effectively enforced in the event of inheritance.
For descendants entitled to a compulsory share of the inheritance, this means: Without a clear agreement on how the gift will be credited, it will have no effect on their compulsory share. Previous support payments therefore do not need to be taken into account in many cases – they are entitled to the full value of their compulsory share.
assessment by Lawyer István Cocron, Cocron Law Firm
“In practice, we repeatedly encounter situations where testators attempt to retrospectively portray a gift as reducing their compulsory share of the inheritance through a will. However, the law does not permit this. The decisive factors are the timing of the gift and a clear instruction regarding its crediting – ideally in writing. Anyone wishing to avoid disputes should ensure clear arrangements are made early on.”
Do you have questions about the law of compulsory shares or the treatment of gifts in inheritance cases?
The law firm Cocron Lawyers offers comprehensive legal advice – whether you are a testator, an heir, or entitled to a compulsory share of the inheritance. Our offices are located in Berlin, Munich, and Frankfurt .
