German intestate succession law - claims of the surviving spouseMehr zum Thema: Erbrecht, intestate, succession, law
Divorce and annulment of the marriage
If a person dies intestate and German succession applies (see our article "Private international law in Germany – succession" ) the heirs are determined by German intestate succession law.
According to § 1931 BGB the surviving spouse of the deceased is entitled to receive:
- 25% of the estate if there is any surviving children (or their issue) of the deceased
- 50% of the estate if the deceased is survived by his/her parents or their issue (i.e. sisters/brothers or nieces/nephews of the deceased) or grandparents
- 100% of the estate if the deceased is not survived by any of the before mentioned relatives
The spouse does not inherit if, at the time of the deceased`s death, the marriage has been divorced or annuled. Furthermore, according to § 1933 BGB the spouse is also not entitled to receive a share of the estate if at the time of the deceased's death, the conditions for the dissuolution were fulfilled and the deceased had already filed the respective petition.
Matrimonial property regime and inheritance rights
The share of the surviving spouse is modified depending on the matrimonial property regime the deceased and his spouse lived under at the time of the deceased`s death.
Statutory property regime of community of surplus
If the spouses were living under the statutory property regime of community of surplus ("Zugewinngemeinschaft") the surviving spouse's intestate share is increased by one fourth as a lump sum for the regular equalization of the surplus (see §§1931 III, 1371 I BGB).
However, if the spouse does not inherit (e.g. because he / she renounces inheritance), he / she may still claim his forced share ("Pflichtteil") and – in addition to this – claim equlization of the surplus, which in this case is calculated according to the provisions of German familiy law. Therefore, if the surplus was very high, it may be advisable for the spouse to renounce the inheritance.
Separation of property ("Gütertrennung"),
If the spouses were living under the contractual property regime of separation of property ("Gütertrennung"), §1931 IV BGB modifies the surviving spouse's share as follows: The surviving spouse inherits together with one or two children or their issue (excluding other relatives) in equal shares. If there is only one child, the child and the spouse thus each inherit one half of the estate. If there are two children, the spouse inherits 1/3. If there are more than two children, however, the spouse's share is one fourth.
Community of property ("Gütergemeinschaft"),
If the spouses were living under the contractual regime of community of property ("Gütergemeinschaft"), the provisions of § 1931 I and II BGB apply without modification. In particular, the spouse's share remains one fourth, even if he / she inherits together with only one or two children. The deceased's share in the joint property (Gesamtgut, § 1416 BGB) falls to his / her estate and is inherited according to the provisions of the law of succession (see § 1482 BGB).
The spouses may provide in a notarial contract that after the death of one of them the community will be continued between the surviving spouse and their joint issue (§ 1483 BGB). In this case, the deceased's share in the joint property does not fall to his estate and the joint ownership is continued between the surviving spouse and those descendants who are called to inherit under the rules of intestate succession. Only the deceased's separate and reserved property is then inherited according to the principles of the law of succession (§ 1483 I 3 BGB).
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