Many married couples want to make sure that the assets they have built up together are distributed after their death exactly as they intended. To do so, they mainly use two instruments: the joint will \u2013 usually in the form of the Berlin will (Berliner Testament) \u2013 and the inheritance contract (Erbvertrag). At first glance the two models look similar, but they differ significantly when it comes to their legal binding effect. Especially when comparing an inheritance contract and a Berlin will, there are important differences that need to be taken into account in estate planning.<\/p>\n\n\n\n
In its decision of 26 March 2025 (case no. IV ZB 15\/24), the Federal Court of Justice (BGH) once again emphasised that the central provision on the binding effect of the Berlin will, Section 2270 of the German Civil Code (BGB), does not apply to inheritance contracts \u2013 neither directly nor by analogy. This distinction between an inheritance contract and a Berlin will has considerable practical consequences and is of great importance for married couples and their heirs.<\/p>\n\n\n\n
In the underlying case, a married couple concluded a notarial inheritance contract together with their son in 1994. The spouses appointed each other as sole heirs, while the son was designated as heir of the surviving spouse. When the husband died in 2021, the son was still alive. However, the son died in March 2022 \u2013 that is, before his mother. The originally appointed final heir thus ceased to apply.<\/p>\n\n\n\n
The legal question was: was the surviving wife free to make a new will after the death of her son? Or were the provisions of the inheritance contract so closely linked to each other that they were to be treated like the mutually dependent dispositions of a Berlin will? This question illustrates the differences between an inheritance contract and a Berlin will.<\/p>\n\n\n\n
The BGH ruled clearly: Section 2270 BGB is not relevant to inheritance contracts. The provision that defines mutual dependency and binding effect in a joint will cannot be transferred to the inheritance contract. The inheritance contract follows its own logical structure.<\/p>\n\n\n\n
The joint will (Sections 2265\u20132272 BGB) is the most widespread form of joint estate planning between spouses and civil partners. Couples particularly often choose the Berlin will, in which they appoint each other as sole heirs and determine who is to receive the estate after the death of the surviving partner \u2013 typically their common children. Compared with the inheritance contract, the Berlin will provides a different kind of binding effect, which is governed primarily by Section 2270 BGB.<\/p>\n\n\n\n
The legal peculiarity results from Section 2270 BGB: certain dispositions are “mutually dependent” (wechselbez\u00fcglich). This means that their content depends on each other. When the first spouse dies, these dispositions generally become binding on the surviving spouse. Later changes are then usually excluded.<\/p>\n\n\n\n
A classic example: if the children are appointed as final heirs, the surviving spouse usually can no longer unilaterally change this provision after the death of the partner.<\/p>\n\n\n\n
The inheritance contract (Sections 2274 et seq. BGB) must be notarised and can be concluded between any persons. Its central feature: it is a contract, not a unilateral disposition like a will. Unlike with the Berlin will, the binding effect of an inheritance contract arises directly from the contractual agreement.<\/p>\n\n\n\n
The binding effect arises directly from the contractual agreement. Contractual dispositions (Section 2278 BGB) cannot, in principle, be revoked unilaterally. Later conflicting wills are invalid under Section 2289 BGB insofar as they infringe the contract. This is a key difference from the Berlin will, whose binding effect only arises after the death of one spouse.<\/p>\n\n\n\n
The binding effect is therefore often stricter than with the Berlin will \u2013 and it applies from the conclusion of the contract, not only from the death of one partner. This makes the inheritance contract an attractive alternative to the Berlin will in certain situations.<\/p>\n\n\n\n
At the same time: not every provision in an inheritance contract is automatically binding. Unilateral, non-contractual elements can still be changed.<\/p>\n\n\n\n
The BGH made it unmistakably clear: Section 2270 BGB does not apply to inheritance contracts.
Considering whether dispositions are “mutually dependent” makes no sense in the case of an inheritance contract, since its binding effect does not arise from dependencies between individual provisions but from its contractual nature itself.<\/p>\n\n\n\n
Anyone wishing to assess whether a disposition in an inheritance contract is binding must therefore rely exclusively on the law of inheritance contracts (Sections 2278 et seq. BGB). By contrast, the binding effect of the Berlin will is governed by Section 2270 BGB, which fundamentally distinguishes the two instruments.<\/p>\n\n\n\n
The decision particularly affects inheritance disputes in which the interpretation of an inheritance contract is unclear \u2013 often in situations where family circumstances have changed. Examples:<\/p>\n\n\n\n
In such cases, the question always arises as to which provisions are binding and which can still be adjusted. According to the BGH, the answer is governed exclusively by the provisions on inheritance contracts \u2013 not by Section 2270 BGB, which applies only to the Berlin will.<\/p>\n\n\n\n
Those affected should in particular have the following checked:<\/p>\n\n\n\n
Typical misunderstandings are:<\/p>\n\n\n\n
Despite the BGH’s clarification, two points regularly remain difficult:<\/p>\n\n\n\n
Both depend heavily on the wording and interpretation of the specific contract.<\/p>\n\n\n\n
Anyone who has concluded an inheritance contract should have it reviewed legally on a regular basis \u2013 especially when there are changes in the family. The same applies if there is uncertainty about the binding effect of individual clauses.<\/p>\n\n\n\n
Couples who are undecided between a Berlin will and an inheritance contract should also seek advice. The two instruments are suited to different situations and lead to different legal outcomes. A Berlin will provides a different kind of binding effect from an inheritance contract, which is why the choice should be carefully considered.<\/p>\n\n\n\n
1. What distinguishes a Berlin will from an inheritance contract?
The Berlin will is a joint testamentary disposition with binding effect under Section 2270 BGB, whereas the inheritance contract is a notarised contract whose binding effect arises as soon as it is concluded.<\/p>\n\n\n\n
2. Can the surviving spouse change a Berlin will?
Only dispositions that are not mutually dependent. Mutually dependent provisions become binding after the death of the first partner.<\/p>\n\n\n\n
3. Can an inheritance contract be changed unilaterally?
Not the contractual parts. Unilateral, non-contractual dispositions, on the other hand, can.<\/p>\n\n\n\n
4. What happens if the appointed heir has predeceased?
It depends on the wording of the contract. A provision on substitute heirs is often decisive.<\/p>\n\n\n\n
5. Which is better \u2013 a Berlin will or an inheritance contract?
That depends on the individual circumstances. Both have different advantages and disadvantages and should be carefully weighed against each other.<\/p>\n","protected":false},"excerpt":{"rendered":"
Berlin will or inheritance contract? In its decision of 26 March 2025 (IV ZB 15\/24), the Federal Court of Justice held that Section 2270 BGB does not apply to inheritance contracts. What this means for the binding effect of your dispositions.<\/p>\n","protected":false},"featured_media":0,"parent":0,"template":"","news-kategorie":[30],"class_list":["post-6010","news","type-news","status-publish","hentry","news-kategorie-erbrecht"],"_links":{"self":[{"href":"https:\/\/ra-cocron.de\/en\/wp-json\/wp\/v2\/news\/6010","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/ra-cocron.de\/en\/wp-json\/wp\/v2\/news"}],"about":[{"href":"https:\/\/ra-cocron.de\/en\/wp-json\/wp\/v2\/types\/news"}],"wp:attachment":[{"href":"https:\/\/ra-cocron.de\/en\/wp-json\/wp\/v2\/media?parent=6010"}],"wp:term":[{"taxonomy":"news-kategorie","embeddable":true,"href":"https:\/\/ra-cocron.de\/en\/wp-json\/wp\/v2\/news-kategorie?post=6010"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}