Enforce or defend your right to a statutory share
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Defence and enforcement of the compulsory portion: who wins in the end?
Conflicts within families are commonplace. Sometimes parents threaten to disinherit their children. But how does this work and what consequences does it have for you? If a family member is excluded from the legal inheritance in a will, they acquire the right to the statutory share. This entitlement amounts to half of the statutory share and guarantees that the entitled person, as a relative of the deceased, receives a minimum amount from the estate. The person entitled to the statutory share has extensive rights to obtain information and to value the assets from the heirs.
In this article, we summarize for you the essential points for defending and enforcing compulsory share claims.
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Who is entitled to a statutory share?
Those entitled to a statutory share are primarily spouses, children, grandchildren and great-grandchildren. If there are no direct descendants, the parents of the deceased are also entitled to the statutory share.
How high is the compulsory portion?
The statutory share corresponds to half of the statutory inheritance that an disinherited family member would receive if there were no will.
Example: A widowed testator with three children, two of whom are mentioned in the will and the third is not, would have a statutory share of 1/6.
What can be demanded?
The statutory share is a monetary claim and does not include the right to claim specific items of the estate.
This can become problematic if the inheritance consists primarily of real estate or a business and there are few liquid assets. In such cases, the heirs may be forced to sell the property or business in order to pay out the statutory share.
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You have these claims as a legal heir
Right to information:
As a person entitled to a statutory share, you must actively assert your claim against the heirs. In addition, you have the right to receive information about the estate. This information must be provided in the form of an estate inventory and can also be enforced in court if necessary.
Claim for valuation:
You have the right to have the value of the estate assets determined by an expert opinion if this is necessary for calculating the statutory share.
payment claim:
Once you have received sufficient information about the estate, you can calculate your exact share and claim it from the heirs.
Claim for additional statutory share:
If the testator made generous gifts before his death in order to reduce the value of the estate, you as the person entitled to a statutory share have the right to partially include these gifts in the calculation of the statutory share.
Claiming and enforcing the statutory share
withdraw the statutory share
In principle, it is not possible to deprive children of their statutory share. However, there is an exception in the few cases set out in Section 2333 of the German Civil Code (BGB), where a serious misconduct must have occurred. In such cases, the deprivation of the statutory share must be expressly stated in the will, and the circumstances must be described in detail.
statute of limitations for the statutory share claim
The claim to the statutory portion expires after three years. The period begins at the end of the year in which the claim arose and the person entitled to the statutory portion became aware of his or her claim or should have become aware of it. In contrast, the period for the claim to a supplementary statutory portion begins with the inheritance.
waiver of the statutory share
If someone has waived his or her statutory share in a joint notarial contract during the testator's lifetime, he or she can no longer assert a claim after the testator's death.
procedural assertion
If the heirs refuse to provide information or do not pay the statutory share, you can sue for your claim in court. Information and payment claims can be combined in one procedure. If information has already been provided, a payment claim is the right way to claim the statutory share from the heirs.
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Disinheriting relatives and legal heirs
Who can be disinherited?
People who would be legal heirs can be disinherited by a will. This usually applies to spouses and children. If there are no descendants, parents, siblings and other relatives can also be considered legal heirs. Disinheritance must be made in a last will and testament, either by will or inheritance contract. It is also possible to appoint other heirs or to disinherit without appointing an heir, which is known as a "negative will". If the will does not explicitly state whether the disinheritance also affects descendants of the disinherited person, it is usually assumed that this is not the case.
Legal Consequences of Disinheritance
Disinheritance prevents the disinherited person from automatically assuming the legal status of the testator. In German inheritance law, the legal heirs automatically inherit the testator's entire estate, including all assets and debts. However, disinheritance does not necessarily mean that the disinherited person will not receive any share of the estate at all.
The law guarantees that relatives of the deceased who are entitled to a statutory share receive a minimum share of the estate, which amounts to half of the original statutory share of the inheritance of the disinherited person. The person entitled to a statutory share has a corresponding claim to payment from the heirs.
Those entitled to a statutory share according to Section 2303 of the German Civil Code (BGB) include the descendants of the testator, the spouse and, if applicable, the parents of the testator (provided that they are legal heirs at all, which is not the case if there are also children).
Withdrawal of the compulsory portion – These are your options
Often testators want unloved close relatives to receive no share of the inheritance, including the statutory portion. This can be achieved by ordering the withdrawal of the statutory portion in the will. However, the requirements for this are high. Withdrawal of the statutory portion is only possible if:
- There is a reason for deprivation of the statutory share.
- The deprivation of the statutory share is correctly explained and justified.
- No forgiveness has been given.
A reason for deprivation of the statutory share may exist if the person entitled to the statutory share wants to kill the testator or a person close to him or her or commits a serious intentional crime against that person. Other reasons for deprivation include, for example, malicious violation of the maintenance obligation towards the testator or a prison sentence without parole due to an intentional crime.
If such a reason exists, the deprivation must be specified precisely and verifiably in a last will and testament (will, inheritance contract). The deprivation can expire if the testator has forgiven the person entitled to the statutory share. Such forgiveness does not have to be expressly declared, but can also result from the testator's behavior.
We help you to enforce or defend your statutory share
Do you need support with statutory share law? An inheritance often has the potential to cause conflict, especially if certain family members are to be disinherited or the estate includes valuable real estate or other assets. Therefore, consulting an inheritance law attorney is recommended at all stages of the inheritance.
Our services in the area of compulsory portion law include:
- Enforcement and defense of claims for statutory shares and statutory share supplements.
- Representation in claims for information and valuation.
- Obtaining expert reports for estate valuation.
- Legal representation in compulsory share proceedings.
- Preparation of compulsory portion waiver agreements.
- Development of strategies to reduce and avoid compulsory portions.
Professional advice & support
We offer you professional and comprehensive initial advice in the area of inheritance law. Take your chance and avoid mistakes.
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