Anyone who disclaims an inheritance generally loses their status as an heir. However, in certain situations, a claim to the compulsory share remains – particularly if the heir has been disadvantaged or disinherited by a will.
🔹 1. The principle
A right to a compulsory share only remains if a restricted or encumbered inheritance is disclaimed.
This applies, for example, if the will
- burden the heir with a condition or division order or
- grants him less than the legally mandated share.
In such a case, the heir loses his status as heir, but retains his right to the compulsory share (§ 2306 BGB).
🔹 2. No compulsory portion supplement in case of voluntary disclaimer
Anyone who rejects an unencumbered inheritance – for example, because the estate is over-indebted or there is no interest – has no claim to a compulsory share .
The compulsory share only arises in the case of disinheritance (§ 2303 BGB).
Therefore, anyone who voluntarily waives their inheritance effectively disinherits themselves , meaning that no compulsory share can be claimed.
🔹 3. Practical example
A testator appoints his son as heir, but obliges him to care for his mother for the rest of his life.
The son can disclaim the inheritance (§ 2306 para. 1 sentence 2 BGB) and subsequently claim the compulsory share (§ 2303 BGB).
If the son refuses because the estate is over-indebted ,
➡️ no compulsory share claim ,
since there is no disinheritance in this case.
🔹 4. Special case: Penalty clauses regarding compulsory shares in the Berlin Testament
In joint wills of spouses containing so-called penalty clauses for claiming a compulsory share, a disclaimer can be interpreted as an assertion of the compulsory share .
This can lead to a complete exclusion in the second inheritance case.
➡️ A legal review before disclaiming the inheritance is therefore strongly recommended.
💡 Conclusion:
Renouncing an inheritance should always be carefully considered. It can be advisable if the will disadvantages the heir, but regularly leads to the loss of the right to a compulsory share if it is done without such reasons.
The Cocron law firm provides competent nationwide support in matters relating to inheritance, disclaimer and compulsory share .
