- Creditors often have an interest in the compulsory share claim.
- However, the compulsory portion can only be seized under certain conditions.
- The person entitled to a compulsory share is not obliged to claim the compulsory share.
If someone is excluded from inheritance as a legal heir and close relative by a will or inheritance contract, this person is generally entitled to a compulsory share from the heirs. This claim amounts to half of the legal share of the inheritance and can represent a considerable sum, depending on the value of the estate.
Creditors’ access to the compulsory share claim of the entitled party
If the person entitled to a compulsory share of the inheritance has debts, their creditors could seize that share, as it is considered an asset under German enforcement law. Creditors with an enforceable judgment can access the debtor’s assets, such as their possessions or claims; this includes the compulsory share. Therefore, it is an attractive object of enforcement for creditors.
Conditions for the attachment of the compulsory share claim
However, special rules apply to the attachment of a compulsory share of an inheritance. A compulsory share is only attachable if it has been acknowledged by contract – even orally – or if it has become the subject of legal proceedings. This means that creditors can only access the compulsory share if the heir has expressly acknowledged it to the entitled party or if the entitled party asserts the claim in court, for example, by issuing a payment order or filing a lawsuit. If these conditions are not met, enforcement proceedings to realize the compulsory share are not permitted. However, this provision does not prevent attachment itself, but merely restricts its realization. ” This rule also applies to the supplementary compulsory share claim resulting from gifts made by the deceased, ” explains attorney István Cocron.
Freedom of choice of the person entitled to a compulsory share
The legislator intends this restriction to ensure that the person entitled to a compulsory share of the inheritance can decide for themselves whether or not to assert their claim against the heirs. A creditor should not be able to make this decision on behalf of the entitled party, so as not to jeopardize their position within the family. However, once the claim has been legally asserted or acknowledged by the heir, creditors can have this claim assigned to them for collection.
