{"id":6014,"date":"2026-05-28T11:06:20","date_gmt":"2026-05-28T09:06:20","guid":{"rendered":"https:\/\/ra-cocron.de\/?post_type=news&#038;p=6014"},"modified":"2026-10-27T08:50:31","modified_gmt":"2026-10-27T07:50:31","slug":"bgh-ruling-no-spousal-inheritance-despite-marriage-still-in-force","status":"publish","type":"news","link":"https:\/\/ra-cocron.de\/en\/news\/bgh-ruling-no-spousal-inheritance-despite-marriage-still-in-force\/","title":{"rendered":"BGH ruling: no spousal inheritance despite a marriage still in force"},"content":{"rendered":"\n<h2 class=\"wp-block-heading\"><strong>The facts<\/strong><\/h2>\n\n\n\n<p class=\"wp-block-paragraph\">The divorce petition had been pending before the family court for a long time. The deceased had expressly consented to the divorce, after which the proceedings were not pursued any further and lay dormant for many years. Eventually one of the spouses withdrew the divorce petition and died a short time later. The central legal question was therefore: does the surviving spouse still inherit despite the divorce that was originally pursued?<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">The Federal Court of Justice (Bundesgerichtshof, BGH) addressed exactly this issue in a widely noted decision and reached a clear conclusion:<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">No.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">The BGH made clear that the statutory inheritance right of a spouse can be excluded even where divorce proceedings have been dormant for many years and the marriage formally continued to exist (order of 13 May 2026, case no. IV ZB 7\/25). In such cases, inheritance law does not depend solely on the formal marriage. The decision is of considerable practical importance \u2013 especially for long-term separations in which spouses live permanently apart but the marriage was never finally dissolved by divorce.<\/p>\n\n\n\n<h2 class=\"wp-block-heading\"><strong>The problem: legally married, in fact long separated \u2013 who inherits?<\/strong><\/h2>\n\n\n\n<p class=\"wp-block-paragraph\">Under German inheritance law, a spouse&#8217;s statutory right of inheritance is in principle linked to the existence of a valid marriage. As long as the marriage has not been legally annulled or dissolved by divorce, the surviving spouse generally inherits under Section 1931 of the German Civil Code (BGB) alongside the children or other statutory heirs of the deceased.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">In practice, however, this often leads to considerable problems and inconsistencies in outcome.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">Many married couples live apart for years or even decades without formally completing a divorce. If one of the spouses dies during this time, the other legally continues to inherit \u2013 even though the marital partnership actually ended long ago and no personal bond whatsoever remains. As a result, children or other relatives often receive considerably less or, in extreme cases, nothing at all.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">Section 1933 BGB contains a special statutory rule for precisely this conflict.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">Under that provision, the spouse&#8217;s statutory right of inheritance is excluded if, at the time of death, the requirements for a divorce were met and the deceased had either filed for divorce himself or herself or had consented to the other spouse&#8217;s divorce petition.<\/p>\n\n\n\n<h2 class=\"wp-block-heading\"><strong>What exactly did the BGH decide on 13 May 2026?<\/strong><\/h2>\n\n\n\n<p class=\"wp-block-paragraph\">The BGH&#8217;s order of 13 May 2026 (case no. IV ZB 7\/25) was based on the following facts:<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">The deceased had been married since 28 July 1988. On 11 October 2000, his wife filed a divorce petition with the Potsdam Local Court (Amtsgericht). At the same time, she applied for equalisation of pension rights (Versorgungsausgleich) and equalisation of accrued gains (Zugewinnausgleich). At the oral hearing on 11 April 2003, the deceased expressly declared his consent to the divorce. At that point he was not yet represented by a lawyer; his legal representative only appeared at the hearing afterwards.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">In the further course of the proceedings, the ancillary matters \u2013 in particular pension equalisation and accrued gains \u2013 were discussed. Settlement talks between the spouses, however, were unsuccessful. Because negotiations on the consequences of the divorce were still ongoing, the court eventually ordered a stay of the proceedings.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">The proceedings then remained dormant for around 18 years.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">By written submission dated 20 December 2021, the wife withdrew her divorce petition. However, this submission was only served on the deceased after his death. The deceased died on 20 January 2022 without leaving a will. He had not previously consented to the withdrawal of the divorce petition.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">The deceased left a biological daughter born outside marriage. The competent probate court (Nachlassgericht) \u2013 the Greifswald Local Court \u2013 rejected the wife&#8217;s application for a joint certificate of inheritance (Erbschein). Her appeal to the Rostock Higher Regional Court (OLG) was also unsuccessful.<\/p>\n\n\n\n<h2 class=\"wp-block-heading\"><strong>Outcome of the BGH decision<\/strong><\/h2>\n\n\n\n<p class=\"wp-block-paragraph\">The wife&#8217;s appeal on points of law (Rechtsbeschwerde) was unsuccessful.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">The Federal Court of Justice held that the spouse&#8217;s right of inheritance is excluded under Section 1933 sentence 1, second alternative, BGB. The deceased&#8217;s biological daughter therefore became the sole statutory heir.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">The long dormancy of the divorce proceedings did not change this. In the BGH&#8217;s view, the long period of inactivity can neither automatically be construed as a withdrawal of the divorce petition nor as a revocation of the consent to the divorce. A restrictive application of Section 1933 BGB was likewise ruled out.<\/p>\n\n\n\n<h2 class=\"wp-block-heading\"><strong>Section 1933 BGB \u2013 explained in plain terms<\/strong><\/h2>\n\n\n\n<p class=\"wp-block-paragraph\">Section 1933 BGB is one of the most important protective provisions of German inheritance law for situations of separation.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">The provision states that the surviving spouse&#8217;s statutory right of inheritance is excluded if, at the time of death, the requirements for a divorce were already met and the deceased had either:<\/p>\n\n\n\n<ul class=\"wp-block-list\">\n<li>filed for divorce himself or herself, or<\/li>\n\n\n\n<li>consented to the other spouse&#8217;s divorce petition.<\/li>\n<\/ul>\n\n\n\n<p class=\"wp-block-paragraph\">For the exclusion to apply, two conditions must therefore be met at the same time:<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">First, the statutory requirements for divorce under Sections 1565 et seq. BGB must have been met. Second, the deceased must personally and actively have expressed the wish to divorce \u2013 either by filing his or her own divorce petition or by consenting to the other spouse&#8217;s petition.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">In the present case, the requirements for divorce were clearly met. There had been no marital partnership between the spouses for many years. Under the German Civil Code, where spouses have lived apart for more than three years, there is an irrebuttable presumption that the marriage has broken down. The deceased and his wife had been living apart since 2000 \u2013 in other words, for well over 20 years.<\/p>\n\n\n\n<h2 class=\"wp-block-heading\"><strong>Why did the 18-year dormancy of the proceedings change nothing?<\/strong><\/h2>\n\n\n\n<p class=\"wp-block-paragraph\">At the heart of the legal dispute was a question that had been contested for years:<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">Do divorce proceedings that have not been pursued for many years mean that Section 1933 BGB no longer applies?<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">Some Higher Regional Courts \u2013 including the OLG Hamm, the OLG Saarbr\u00fccken and in part also the OLG D\u00fcsseldorf \u2013 had taken the view that years of not pursuing the proceedings could be treated as a tacit withdrawal of the petition or as a revocation of consent. It was sometimes even considered that the exclusion of the right of inheritance could be \u201cforfeited\u201d (verwirkt).<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">Other courts \u2013 such as the OLG K\u00f6ln and a further decision of the OLG D\u00fcsseldorf \u2013 rejected any such restriction.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">The Federal Court of Justice has now settled this disputed question at the highest level.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">In the BGH&#8217;s view, even a stay of proceedings lasting many years leads neither to an implied withdrawal of the divorce petition nor to a teleological reduction (restrictive interpretation according to purpose) of Section 1933 sentence 1 BGB.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">The gist of the official headnote is therefore:<br>A long stay of divorce proceedings does not remove the effect of Section 1933 BGB.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">The BGH gave the following reasons:<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">A stay of proceedings does not end their pendency (Rechtsh\u00e4ngigkeit). Moreover, mere inactivity is not sufficient for a tacit withdrawal of the petition. For that, it would have to be clearly and unambiguously apparent that the party had abandoned the wish to divorce.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">That was precisely not the case here. On the contrary, as late as July 2004 the wife had stated that she wanted to be divorced as quickly as possible.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">The BGH also rejected a restrictive interpretation of Section 1933 BGB. There was no legislative basis whatsoever for such a teleological reduction. There was no unintended gap in the legislation.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">In the court&#8217;s view, the legislative intention is clear:<br>By filing a divorce petition or consenting to one, the deceased clearly expresses that the marital bond \u2013 and with it the inner justification for the spouse&#8217;s right of inheritance \u2013 has ceased to exist. A later standstill in the proceedings does not change this.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">The BGH also emphasised that the spouses could at any time jointly end the proceedings or make different arrangements by will.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">The aspect of legal certainty was also particularly important to the court. If the exclusion of the right of inheritance were to lapse at some point merely through the passage of time, there would be considerable uncertainty as to when exactly this should apply. This is precisely what the BGH wanted to avoid.<\/p>\n\n\n\n<h2 class=\"wp-block-heading\"><strong>Withdrawal of the divorce petition and its legal effect<\/strong><\/h2>\n\n\n\n<p class=\"wp-block-paragraph\">The wife had withdrawn her divorce petition by written submission dated 20 December 2021. However, this submission was only served after the death of the deceased.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">In the wife&#8217;s view, the withdrawal should have ended the proceedings and thus revived her statutory right of inheritance.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">The BGH, however, did not accept this argument.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">Under Section 269(1) of the German Code of Civil Procedure (ZPO), a divorce petition can only be withdrawn without the other spouse&#8217;s consent until the start of the oral hearing. In the present case, however, the deceased had already argued the merits and consented to the divorce at the oral hearing on 11 April 2003. In addition, his legal representative had subsequently discussed the ancillary matters, which according to case law is sufficient for the oral hearing to have begun.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">A later withdrawal was therefore only possible with the deceased&#8217;s consent.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">He, however, never gave that consent.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">Since the withdrawal submission was, moreover, only served on the deceased after his death, the statutory deemed consent could no longer take effect either.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">At the time of death, the divorce proceedings were therefore still pending. Section 1933 BGB remained applicable.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">The practical consequence is considerable:<br>If the other spouse has already argued the merits or accepted the divorce petition, the petitioning party can no longer unilaterally save his or her statutory right of inheritance by withdrawing the divorce petition.<\/p>\n\n\n\n<h2 class=\"wp-block-heading\"><strong>Who is affected by the decision?<\/strong><\/h2>\n\n\n\n<p class=\"wp-block-paragraph\">The BGH&#8217;s decision concerns numerous situations that occur more often in practice than many people assume:<\/p>\n\n\n\n<ul class=\"wp-block-list\">\n<li>Long-term separations without a formal divorce: many married couples live permanently apart but never officially dissolve the marriage. If a divorce petition has already been filed and the other spouse has consented, Section 1933 BGB can still apply even after decades.<\/li>\n\n\n\n<li>Dormant divorce proceedings: proceedings that have been stayed remain legally pending. The declarations made in them \u2013 in particular consent to the divorce \u2013 remain effective.<\/li>\n\n\n\n<li>Children and other relatives as disadvantaged heirs: if a spouse inherits even though the marriage has in fact broken down, the share of the other statutory heirs is often considerably reduced. The ruling therefore strengthens the rights of children and other relatives.<\/li>\n<\/ul>\n\n\n\n<p class=\"wp-block-paragraph\">In the specific case before the BGH, there was a child born outside marriage. Without Section 1933 BGB, this child would have inherited alongside the wife and received only a considerably smaller share. Because the spouse&#8217;s right of inheritance was excluded, the daughter inherited alone.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">Of particular significance is the court&#8217;s clarification that the mere passage of time does not remove the effect of Section 1933 BGB.<\/p>\n\n\n\n<h2 class=\"wp-block-heading\"><strong>What should those affected check now?<\/strong><\/h2>\n\n\n\n<p class=\"wp-block-paragraph\">The decision has important practical consequences for heirs and relatives:<\/p>\n\n\n\n<ul class=\"wp-block-list\">\n<li>Check the status of the proceedings: were divorce proceedings pending? Had the deceased consented to the divorce? Were the proceedings concluded or merely stayed?<\/li>\n\n\n\n<li>Check any withdrawal of the divorce petition: if the petition was withdrawn before death, it must be examined whether the deceased validly consented to that withdrawal.<\/li>\n\n\n\n<li>Have the certificate of inheritance reviewed: if a certificate of inheritance was issued in favour of the spouse although Section 1933 BGB may apply, it can be challenged under Section 2361 BGB.<\/li>\n\n\n\n<li>Observe deadlines: inheritance proceedings are subject to strict deadlines. Claims should therefore be examined and asserted at an early stage.<\/li>\n<\/ul>\n\n\n\n<p class=\"wp-block-paragraph\">In such cases, advice from a certified specialist lawyer is generally advisable. Whether Section 1933 BGB actually applies always depends on the specific status of the proceedings and the circumstances of the individual case.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">The decision also holds an important lesson for testators:<br>If you want to make sure that a spouse from whom you are separated does not inherit, you should not rely solely on dormant divorce proceedings. A clear provision in a will and a deliberate decision to continue or end the divorce proceedings can be decisive.<\/p>\n\n\n\n<h2 class=\"wp-block-heading\"><strong>Do you have questions about a spouse&#8217;s right of inheritance or about ongoing divorce proceedings?<\/strong><\/h2>\n\n\n\n<p class=\"wp-block-paragraph\">The Federal Court of Justice&#8217;s decision of 13 May 2026 shows how complex inheritance law questions can be in connection with separation and divorce \u2013 even where the marriage has in fact been over for many years.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">Whether a spouse&#8217;s right of inheritance is excluded depends largely on the specific circumstances of the divorce proceedings.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">As a certified specialist in inheritance law (Fachanwalt f\u00fcr Erbrecht), Istv\u00e1n Cocron advises clients in exactly these situations \u2013 for example when reviewing certificates of inheritance, enforcing or defending against inheritance claims, and planning their own estate with foresight.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">You can find further information at <a href=\"https:\/\/ra-cocron.de\/en\/\">www.ra-cocron.de<\/a>.<\/p>\n\n\n\n<h2 class=\"wp-block-heading\"><strong>FAQ \u2013 Frequently asked questions about a spouse&#8217;s right of inheritance during divorce proceedings<\/strong><\/h2>\n\n\n\n<h3 class=\"wp-block-heading\">Does my spouse inherit despite our separation if we are not yet divorced?<\/h3>\n\n\n\n<p class=\"wp-block-paragraph\">In principle, yes. As long as the marriage formally exists, the statutory right of inheritance of the spouse under Section 1931 BGB applies in the first instance. However, Section 1933 BGB contains an important exception. Under it, the right of inheritance lapses if, at the time of death, the requirements for a divorce were met and the deceased had personally filed for divorce or consented to a corresponding petition.<\/p>\n\n\n\n<h3 class=\"wp-block-heading\">What happens if the divorce proceedings have been dormant for many years?<\/h3>\n\n\n\n<p class=\"wp-block-paragraph\">A stay of proceedings does not end their pendency. As the BGH decided in its order of 13 May 2026, consent to the divorce remains effective even after years of inactivity. Section 1933 BGB can therefore still apply even decades later.<\/p>\n\n\n\n<h3 class=\"wp-block-heading\">Can the wife withdraw her divorce petition in order to preserve her right of inheritance?<\/h3>\n\n\n\n<p class=\"wp-block-paragraph\">Not without the other spouse&#8217;s consent. If the other spouse has already consented to the divorce or argued the merits, the petition can no longer be withdrawn unilaterally. Without consent, the proceedings remain pending and the spouse&#8217;s right of inheritance remains excluded.<\/p>\n\n\n\n<h3 class=\"wp-block-heading\">What does this mean for the deceased&#8217;s children?<\/h3>\n\n\n\n<p class=\"wp-block-paragraph\">If the spouse&#8217;s right of inheritance is excluded under Section 1933 BGB, the children&#8217;s share increases accordingly. In the case decided, the daughter born outside marriage inherited alone because the wife&#8217;s right of inheritance was excluded.<\/p>\n\n\n\n<h3 class=\"wp-block-heading\">How can you check whether Section 1933 BGB applies in a specific case?<\/h3>\n\n\n\n<p class=\"wp-block-paragraph\">This requires a careful review of the documents from the divorce proceedings. The following questions are particularly decisive:<\/p>\n\n\n\n<ul class=\"wp-block-list\">\n<li>When was the divorce petition filed?<\/li>\n\n\n\n<li>Did the deceased consent to the petition?<\/li>\n\n\n\n<li>Were the proceedings concluded or merely stayed?<\/li>\n\n\n\n<li>Were the requirements for divorce met at the time of death?<\/li>\n<\/ul>\n\n\n\n<p class=\"wp-block-paragraph\">Since numerous formal requirements and deadlines must be observed, a review by a certified specialist lawyer is generally advisable.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\"><\/p>\n","protected":false},"excerpt":{"rendered":"<p>The Federal Court of Justice (BGH) has ruled that a spouse can be excluded from statutory inheritance under Section 1933 BGB even if divorce proceedings lay dormant for 18 years and the marriage formally continued (order of 13 May 2026, IV ZB 7\/25).<\/p>\n","protected":false},"featured_media":0,"parent":0,"template":"","news-kategorie":[30],"class_list":["post-6014","news","type-news","status-publish","hentry","news-kategorie-erbrecht"],"_links":{"self":[{"href":"https:\/\/ra-cocron.de\/en\/wp-json\/wp\/v2\/news\/6014","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=6014"}],"wp:term":[{"taxonomy":"news-kategorie","embeddable":true,"href":"https:\/\/ra-cocron.de\/en\/wp-json\/wp\/v2\/news-kategorie?post=6014"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}