Everyone can choose their own heirs. However, if someone dies without a will or inheritance contract, the law determines the order of inheritance. This is frequently the case in Germany: According to a YouGov survey from August 2022, around 66 percent of Germans do not have a will. In approximately two-thirds of all deaths, the statutory order of inheritance therefore determines who receives the assets. We explain how you can find out who inherits in your family according to the statutory order of inheritance.
How does inheritance law work?
The distribution of the inheritance is determined by the degree of kinship: children and grandchildren inherit first, followed by more distant relatives such as siblings, nieces, and nephews. Closer relatives exclude more distant relatives from inheritance; that is, if the deceased has children, the siblings inherit nothing.
Spouses and legal heirs
Spouses always inherit alongside relatives. The size of their share depends on who else is in the line of succession. For example, a spouse inherits one-quarter of the estate alongside first-order heirs.
The statutory inheritance law divides relatives into different groups:
1. First order: Children and grandchildren
Second Order: Parents, Siblings, Nieces and Nephews
3. Third Order: Grandparents, Uncles, Aunts, Cousins.
Relatives of a preceding order exclude relatives of a subsequent order from inheritance (§ 1930 of the German Civil Code). This means: If the deceased has children, neither their parents nor their siblings inherit as heirs of the second order, explains lawyer István Cocron of the Cocron law firm. If, however, the deceased has no children, there are no heirs of the first order, and the deceased’s parents inherit as legal heirs of the second order.
Within an inheritance process, the so-called principle of representation applies. An example will illustrate this: If the grandfather dies, his children inherit as heirs of the first order, thus representing their own descendants, the grandchildren, who receive nothing directly. As long as a brother or sister is still alive, nephews and nieces do not inherit. Conversely, children take the place of a deceased parent.
The spouse inherits alongside the relatives.
In addition to relatives, the surviving spouse of the deceased also inherits. This spousal inheritance right reduces the inheritance rights of relatives (§ 1931 German Civil Code). The spouse’s share of the inheritance significantly influences the shares of the other heirs.
The surviving spouse receives one-quarter of the estate if there are first-degree relatives, and one-half if there are second-degree relatives or grandparents. The spouse’s share often increases to one-half if the spouses were married under the statutory property regime of community of accrued gains (Sections 1931 para. 3, 1371 of the German Civil Code), particularly if no prenuptial agreement exists.
First-order heirs
Heirs of the first order are the descendants of the deceased. At the time of death, the living child inherits alongside the surviving spouse. If there are several children, the inheritance is divided between them and the spouse. Within this first order, the division occurs according to lines of descent, with each child and their descendants forming their own line of descent. If children die before the testator, the right of inheritance passes to their children. Children born out of wedlock after July 1, 1949, have the same inheritance rights as children born in wedlock.
Second-order heirs
If there are no heirs of the first order, as is the case with childless testators, the heirs of the second order inherit. These are the testator’s parents and their descendants, i.e., the testator’s siblings. Within the second order, inheritance is divided according to lineage: parents and their descendants inherit equal shares. If only one parent is alive, the siblings inherit in their place.
Third-order heirs
More distant relatives inherit if the deceased leaves neither descendants nor first- or second-degree relatives. This includes grandparents and their descendants, such as uncles and aunts.
Adopted children
Adopted minor children are legally treated like biological children and are heirs of the first order (§ 1754 German Civil Code). With the adoption, the legal relationship to the biological parents is terminated, and thus their inheritance rights are also extinguished. Adult adoptees retain the legal relationship to their biological parents and can receive up to four shares of the inheritance.
The state as heir
If there are no heirs or if all heirs disclaim the inheritance, the state inherits, specifically the federal state in which the deceased last resided. However, the state’s liability for the estate’s debts is limited (§ 1936 BGB).
