German Law Of Inheritance: Intestate Succession
The purpose of this information to provide an overview of the law relating to intestate successions under the German Civil Code (BGB). Details and issues related to the application of the law to specific cases should be inquired with an experienced law firm.
- Private International Law: Applicable legal system
Under the German law relating to conflicts of laws, any succession will be governed by the laws of the nationality of the decedent. Accordingly, the German Surrogate’s Court with jurisdiction over the matter will apply German law if the decedent was a German citizen at the time of his/her death; it will apply foreign law in other cases. However, German law will accept any reference back to German law which is provided for in the laws of another country; thus the succession in relation to real estate situated in Germany will be governed by the application of German law if the otherwise applicable legal system so provides (as in most US Federal States).
- Basic terms of German Law of Successions
The basic idea of successions under German law (§ 1922 BGB) is to regard the estate as a whole to be passed on to the one or several heir(s) by operation of the law upon the death of the decedent (testate or intestate succession). The rights relating to the estate are not vested in an executor/administrator. It is up to the one or several heir(s) to take charge of the estate, to pay the debts, to pay out or transfer any bequests, and to dissolve the estate in accordance with the decedent’s last will or with intestate succession laws. Any claim towards the estate must be addressed to the heir(s).
- Claims of the Surviving Spouse
- 25% of the estate if there is any surviving issue of the decedent;
- 50% of the estate if the decedent is survived by a parent or their issue (i.e. the decedent’s brothers/sisters or nephews/nieces) or grandparents;
- 100% of the estate if the decedent is not survived by any of the above relatives.
The surviving spouse of the decedent is entitled to receive (§ 1931 BGB):
The surviving spouse will be eligible to collect an extra 25% share of the estate under the laws relating to matrimonial property if there was no ante-nuptial contract between the spouses (§ 1371 BGB).
If the decedent is survived only by one child or two children and the spouses had settled an agreement on separation of property, the surviving spouse will have to share the estate equally with the child or two children (i.e. ½ or 1/3 share).
- Claims of Relatives of the Decedent
- the issue of the decedent (children, grandchildren, etc.) whereby a living generation excludes the following generation (§ 1924 BGB);
- the parents of the decedent or their issue (§ 1925 BGB);
- the grandparents of the decedent or their issue (§ 1926 BGB);
- the great-grandparents of the decedent or their issue (§ 1928 BGB);
- more distant relatives of the decedent, those of a closer degree taking precedence of those of a more distant degree (§ 1929 BGB);
- the State of residence of the decedent if there is neither a surviving spouse nor any surviving relative
In cases of intestate succession, the estate or the remainder of the estate beyond the surviving spouse’s share (in accordance with the preceding paragraph) will be distributed to the following persons in equal shares (per stirpes), with the first applicable category taking priority over the subsequent categories:
- Minimum Benefit of Spouse and/or Children (Pflichtteilsrecht)
The surviving spouse and the issue of the decedent (or his/her parents if there is no spouse nor issue) are entitled to a minimum benefit amounting in value to half their regular share in the estate as mentioned above. This “obligatory share” may be claimed if under the decedent’s last will the surviving spouse or issue (or parents respectively) are not among the beneficiaries or if the net value of their benefit amounts to less than their minimum share. This claim has to be filed within a period of three years after the death of the decedent.