Most married couples who draw up a joint will have the same aim. Whoever passes away first should leave the other partner financially secure. The house should remain where it is, and the children should only inherit once both parents have died. The Berlin will is designed for this very purpose, which is why so many married couples choose it.
The consequences often only become apparent years later. The surviving spouse is bound by what was originally agreed, even if their life has changed completely in the meantime. The children are disinherited in the first succession and may claim money at a time when nobody is expecting it. From a tax perspective, this arrangement is also often less favourable than a phased solution.
Key points at a glance
- In a Berlin will, spouses appoint each other as sole heirs and jointly decide who is to inherit after the death of the surviving spouse. These people are known as residual heirs; they are usually their own children.
- Only married couples and registered civil partners may draw up a joint will (Section 2265 of the German Civil Code (BGB), Section 10(4) of the Registered Civil Partnership Act (LPartG)). Unmarried couples need to enter into an inheritance contract.
- The handwritten form is simplified. One party writes the entire text by hand, and both sign it (Section 2267 of the German Civil Code (BGB)).
- Following the first death, the surviving spouse is bound by the dispositions that both spouses made in mutual reliance on one another. These are known as reciprocal dispositions, and as a general rule they cannot be altered at a later date (Section 2271(2) of the German Civil Code (BGB)).
- Under the standard ‘uniform solution’, the children are disinherited in the first instance of succession and are therefore entitled to a compulsory share from the surviving parent, in the form of a purely monetary claim.
- A penalty clause relating to the compulsory share cannot prevent this claim. It merely imposes a penalty in respect of the second inheritance.
- From a tax perspective, the ‘one-size-fits-all’ solution means that the tax-free allowances for children are forfeited upon the first inheritance.
What the ‘Berlin Will’ is
The ‘Berlin will’ is not a distinct form of will, but rather a specific arrangement within the context of a joint will. The term is not recognised by law. It always refers to the same basic structure, namely that two spouses appoint each other as sole heirs and, at the same time, specify who is to receive the entire estate following the death of the surviving spouse.
The practical implications become apparent upon the first death. Without a will, the surviving spouse would share the estate with the children and would form part of a community of heirs – that is, a group of co-heirs who can only dispose of the estate jointly. They would then no longer be able to make decisions regarding the house, the bank account or a securities portfolio on their own. The Berlin will overrides the statutory order of succession. The surviving spouse inherits alone and retains the capacity to act, and this is precisely the purpose of drawing up the will.
Sole heir or preliminary heir – a difference with far-reaching consequences
Under the joint inheritance scheme, the surviving spouse becomes the sole heir. The deceased’s estate is merged with the surviving spouse’s own estate to form a single estate, over which the surviving spouse has full control. They may use, reallocate, sell or give away the assets. The children do not subsequently inherit from the parent who died first, but exclusively from the parent who died last; they are that parent’s final heirs.
Under the separation of estates, the surviving spouse becomes merely a preliminary heir. The deceased’s estate remains separate and is subsequently passed on to the reversionary heirs – that is, those who inherit after the preliminary heir. In the case of a property, a reversionary heir’s note is entered in the land register for this purpose. Without a specific exemption, the preliminary heir may not dispose of the assets (§§ 2113 et seq. BGB). In practice, however, they are usually appointed as an exempt preliminary heir (§ 2136 BGB) and are then also permitted to dispose of land and use up the assets. There is one restriction from which no one can exempt them: gifts and other gratuitous dispositions remain invalid (Section 2113(2) of the German Civil Code (BGB)).
If the will does not contain any clear provisions, a statutory rule of interpretation applies. Under Section 2269(1) of the German Civil Code (BGB), in cases of doubt the ‘unified solution’ is intended, meaning that the third party is then deemed to be the heir of the spouse who died last. This is the norm in practice, and the surviving parent is therefore entitled to use up the inherited assets.
The separation solution keeps the assets within the family of the first to die. However, it only safeguards the estate in the case of a non-exempt preliminary heir, as the exempt preliminary heir is permitted to use and reallocate the assets; they are merely prohibited from making gifts. In return, this solution restricts freedom of disposal and creates a permanent administrative burden, as any disposition of property must be approved by the reversionary heir.
Who can draw up a ‘Berlin will’
Section 2265 of the German Civil Code (BGB) expressly permits joint wills only for spouses. The same applies to registered civil partners, as Section 10(4) of the Registered Civil Partnership Act (LPartG) declares the relevant provisions to be applicable mutatis mutandis. New civil partnerships have not been able to be entered into since 1 October 2017; existing ones remain in force unchanged. Since then, same-sex married couples have in any case been directly covered by Section 2265 of the German Civil Code (BGB).
Unmarried couples and engaged couples cannot draw up a joint will. If they do draw one up, it is invalid as such. Courts occasionally reclassify such a document as two separate individual wills, provided that each part is formally valid in its own right and both parties would have clearly intended this (Higher Regional Court of Braunschweig, order of 21 April 2005, 2 W 225/04, re Section 140 of the German Civil Code (BGB)). However, the will then lacks any binding effect whatsoever; either party may revoke it at any time without the other party being aware of it.
The only option for a genuine legal relationship outside marriage is a contract of inheritance under sections 2274 et seq. of the German Civil Code (BGB). This is open to anyone, but must be notarised, and both parties must be present at the notary’s office at the same time (section 2276(1) BGB).
How the will takes effect
The handwritten form
A Berlin will does not require a notary. In fact, there is a simplification for handwritten wills that is not otherwise found in inheritance law. Under Section 2267 of the German Civil Code (BGB), it is sufficient for one spouse to write the entire text by hand and sign it, whilst the other spouse countersigns the joint declaration in their own hand. The second spouse is therefore not required to copy out the text.
The co-signing spouse must state when and where they signed. This is a recommended provision rather than a requirement for validity, as the will remains valid even without a place and date (Higher Regional Court of Düsseldorf, order of 3 January 2017, I-3 Wx 55/16). Nor do both spouses have to sign on the same day.
Nevertheless, the date should not be omitted. If several wills come to light following a person’s death, the chronological order determines which one is valid, and without a date it is often impossible to establish this order. It is also difficult to answer the question of whether someone was even capable of making a will at the time it was drawn up – that is, whether they had the mental capacity to understand the implications of their instructions – without a date.
In terms of content, a Berlin will should include more than just the mutual appointment of heirs. It should also specify who inherits following the second death, who takes the place of a designated heir should that person die beforehand, and whether the survivor is permitted to make any subsequent changes. It is precisely this last point that is almost always omitted in practice, leaving a court to interpret what was intended decades later.
Notarised will, safekeeping and the register of wills
Notarial certification costs money. In return, the notary drafts the document in a legally sound manner, resulting in a public deed. At the Land Registry, this deed generally replaces the certificate of inheritance – that is, the official certificate confirming the status of heir – because the Land Registry is satisfied with the will together with the probate court’s record of the opening of the estate (Section 35(1), second sentence, of the Land Registry Act (GBO)). If you own property, this saves time and fees later on.
A fee of 2.0 applies to the notarisation of a joint will (KV 21100 GNotKG), which is double the rate for a sole will. The basis for calculation is the value of the estate. This is determined by the assets minus liabilities, whereby liabilities may be deducted up to a maximum of half the value of the assets (Section 102(1) GNotKG). As two people are making a will, the assets of both spouses are added together (Section 35(1) in conjunction with Section 111(1) of the GNotKG). With a joint net estate of 400,000 euros, the fee amounts to 1,570 euros, plus out-of-pocket expenses and VAT.
A notarised will is placed in special official safekeeping at the local civil court; the notary is responsible for this (Section 34 of the Notarisation Act (BeurkG)). A holographic will may be deposited there on request (Section 2248 of the Civil Code (BGB)). The court fee for this is a one-off charge of 82 euros (KV 12100 GNotKG, as at 1 June 2025). In addition, there is a fee for registration in the Central Register of Wills of the Federal Chamber of Notaries, which is charged per testator; in the case of the Berlin will, this applies twice, at a cost of 12.50 euros when invoiced via the notary and 15.50 euros when invoiced directly.
The register merely notes whether a will exists and where it is kept, not what it contains. In the event of a person’s death, it automatically notifies the probate court. A will kept in a drawer, on the other hand, may go missing, be overlooked or be found by someone who does not like its contents.
A special provision applies to the withdrawal of a will from official custody. A joint will may only be reclaimed by both spouses jointly (Section 2272 of the German Civil Code (BGB)). In the case of a notarised will, the return of the will is also deemed to be a revocation (Section 2256(1) of the German Civil Code (BGB)); this is not the case with a holographic will, which remains valid after its return (Section 2256(3) of the German Civil Code (BGB)).
Formal errors that occur most frequently in practice
Most invalid wills are not invalidated by complex legal issues, but by technical errors:
- The text has been typed on a computer and merely signed. A holographic will must be written entirely by hand (Section 2247(1) of the German Civil Code (BGB)).
- The other spouse does not sign. In that case, there is only a sole will drawn up by the testator, without any binding effect.
- The signature is not at the end of the text. What follows below it is no longer covered by it.
- Any subsequent additions shall be appended without the need for both parties to sign again.
The loss of the original, on the other hand, does not constitute a formal defect. A will remains valid even if only a copy remains. However, the heirs must then prove that the will existed and what it looked like, and case law imposes strict requirements in this regard (Higher Regional Court of Cologne, order of 2 December 2016, 2 Wx 550/16).
Why the binding effect is the deciding factor
Interdependence is the concept on which the Berlin Will hinges.
Decisions relating to transfers
A reciprocal provision is an arrangement which one spouse has made solely because the other spouse has, for their part, made a specific arrangement (Section 2270(1) of the German Civil Code (BGB)). The two provisions stand or fall together. If one becomes invalid or is revoked, the other also ceases to have effect.
As it is difficult to ascertain the true intentions of two people after their death, the law provides a presumption. If spouses name each other as heirs, these provisions are deemed to be reciprocal in cases of doubt. The same applies if one person makes a gift to the other and, for the period following the other’s death, provides for someone from the donor’s family or close circle (Section 2270(2) of the German Civil Code (BGB)). Both scenarios apply to the typical ‘Berlin will’ where the couple have children together.
However, this presumption does not apply across the board to the entire will. Each individual provision must be examined separately. In 2025, the Higher Regional Court of Brandenburg clarified that the binding nature of the appointment of the principal heir does not automatically extend to a provision for substitute heirs (order of 4 July 2025, 3 W 79/24).
In any case, not every disposition can be reciprocal. Section 2270(3) of the German Civil Code (BGB) limits the scope to appointments of heirs, legacies, conditions and the choice of applicable inheritance law. A legacy is a single gift to a person who is not an heir, whilst a condition is an obligation on the heir to perform a specific act.
Any other provisions are disregarded, such as an order for the execution of a will, an order specifying who is to receive which item, or a prohibition on the division of the estate. The surviving spouse may revoke any such provisions they have made at any time. The provisions made by the first to die, however, remain in force, as their will became final upon their death.
Revocation, whilst both are alive
As long as both spouses are alive, nothing is set in stone. Together, they can revoke the will at any time or replace it with a new one. It is also possible to do so unilaterally, but only by following a specific procedure.
In the case of reciprocal dispositions, Section 2271(1) of the German Civil Code (BGB) refers to Section 2296 BGB. The revocation must be notarised, it must be served on the other spouse, and it may only be declared by the spouse themselves; an authorised representative is not sufficient. A new will drawn up in secret does not remove the binding effect. By contrast, provisions which are not reciprocal from the outset may be revoked by either spouse without the involvement of a notary and without service on the other spouse, for example by means of their own new will (Section 2254 of the German Civil Code (BGB)).
Access is the crucial point. The other spouse must be informed that the basis of the transaction has ceased to exist, so that they too can make a new decision. If they no longer have legal capacity, revocation remains possible. The declaration is then sent to the guardian responsible for their assets (Higher Regional Court of Nuremberg, order of 6 June 2013, 15 W 764/13, and Higher Regional Court of Hamm, order of 5 November 2013, 15 W 17/13).
If one spouse validly revokes the disposition, the corresponding disposition made by the other spouse also lapses in accordance with Section 2270(1) of the German Civil Code (BGB). The other spouse thereby simultaneously forfeits what was intended for them.
Following the first death
The right of revocation ceases upon the death of the first spouse (Section 2271(2), first sentence, of the German Civil Code (BGB)). If the surviving spouse accepts the inheritance, they are bound by the reciprocal dispositions, and this is permanent. They may subsequently draw up a will, but it will be ineffective to the extent that it contradicts this binding provision.
A child who takes particular care of the family in the years that follow cannot therefore be given a better share of the inheritance retrospectively. The surviving spouse cannot name a new partner as an heir. Conversely, a child who has long since broken off contact remains the sole heir.
This strict interpretation is intentional, as the spouse who died first transferred their assets in reliance on the agreement. Case law interprets the binding nature of the agreement very strictly. In 2026, the Higher Regional Court of Zweibrücken emphasised on two occasions that, without an express reservation, there is no room for manoeuvre. What is decisive is the mutual intention at the time of the will’s creation, not what a spouse declares later (judgements of 25 February 2026, 8 W 88/25, and of 8 June 2026, 8 W 116/24).
How to loosen the knot even further
To decline the gift
A solution can be found in the law itself. Under Section 2271(2), first sentence, of the German Civil Code (BGB), the surviving spouse regains their freedom to make a will – that is, the right to make new arrangements regarding their estate – if they renounce the bequest made to them. The value of the bequest is irrelevant in this regard.
However, by renouncing the inheritance, the statutory share is in principle also forfeited. The law makes an exception for the surviving spouse if the couple were married under the statutory matrimonial property regime of community of accrued gains. The surviving spouse may then claim the specifically calculated equalisation of accrued gains, i.e. their share of the actual increase in assets during the marriage. In addition, there is the small compulsory portion, calculated on the basis of the statutory share of the estate without any increase (Section 1371(2) and (3) of the German Civil Code (BGB)). If the accrued gains were substantial, this approach may even be more financially advantageous than the inheritance. In the case of separate property or community of property – that is, where the spouses have agreed otherwise in a marriage contract – the exception does not apply; in such cases, renouncing the inheritance generally results in the complete loss of the share.
The time limit is short. An inheritance must be renounced within six weeks, calculated from the day on which the heir learns of the death and realises that they have become an heir and why. If the status as an heir is based on a will, the time limit begins at the earliest upon notification of the will by the probate court (Section 1944(1) and (2) of the German Civil Code (BGB)). Where there is an international element, the period is six months (Section 1944(3) of the German Civil Code (BGB)). By contrast, there is no time limit for renouncing a legacy as long as it has not yet been accepted (Section 2180 of the German Civil Code (BGB)).
Challenge where a new person entitled to a compulsory share is added
The surviving spouse may challenge their own will, which has become binding, if, after the will was drawn up, a person entitled to a compulsory share has come into being and has been omitted from the will (Section 2079 of the German Civil Code (BGB)). In practice, this applies to two scenarios: the surviving spouse remarries, or another child is born. It is recognised that this also applies to the surviving spouse’s own reciprocal dispositions (BayObLG, decision of 9 June 1999, 1Z BR 53/99).
The challenge must be lodged with the probate court. The rules governing contracts of inheritance apply mutatis mutandis to the form and time limit; the declaration must therefore be notarised, and it is subject to a time limit of one year from the date on which the grounds for the challenge became known. Once this year has elapsed, the obligation remains in force.
There are two important limitations. A challenge is precluded if it can be assumed that the disposition would have been made even had the circumstances been known (Section 2079, second sentence, of the German Civil Code (BGB)). Furthermore, pursuant to Section 2270(1) of the German Civil Code (BGB), it also covers the corresponding disposition made by the first deceased, i.e. typically their own appointment of an heir. A challenge may therefore retroactively deprive the survivor of their status as sole heir.
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Dismissal for serious misconduct
If there is a ground relating to the final heir which would justify the withdrawal of the compulsory share, the survivor may revoke the bequest even after accepting the inheritance (Section 2271(2), second sentence, in conjunction with Sections 2294 and 2336 of the German Civil Code (BGB)). The conditions are strict. A serious offence within the meaning of Section 2333 of the German Civil Code (BGB) is required, such as a crime against the testator or a person close to them. Merely breaking off contact or a family dispute is not sufficient.
Added to this is a procedural hurdle which often causes such revocations to fail in practice. The revocation must be declared in a new will, and the reason must be expressly stated therein and must already exist at that time (Section 2336(1) and (2) of the German Civil Code (BGB)). In the event of a dispute, the party invoking the revocation must prove it.
Reservation of the right to make changes and indemnity clause
The binding nature of the arrangement can be limited from the outset. An exemption clause removes the reciprocal nature of certain provisions. A reservation of the right to amend maintains the binding nature of the arrangement but allows the surviving spouse to make a new decision within a defined framework, typically limited to the distribution of assets amongst the joint children.
For this to be valid, the reservation must be clearly worded. Merely clarifying that the survivor is the sole heir or may dispose of the estate at will is not sufficient, as such wording relates to inter vivos dispositions and not to the freedom to make a will. Furthermore, the surviving spouse may only exercise the reservation within the limits granted to them. For example, a reservation in the event of misconduct by a family member is not valid if the severance of contact was caused by the testator themselves.
What the surviving spouse is permitted to do with the estate
The provision applies only to the will, that is, to the question of who is to inherit after death. It does not cover what the surviving spouse does during their lifetime. As the sole heir, they are free to sell the house, spend the money and buy a new car. The final heirs have no right to expect anything to be left to them.
The law draws a line only in the case of gifts. Section 2287 of the German Civil Code (BGB) grants the mandatory heir a claim for restitution against the recipient of the gift if the testator made the gift with the intention of prejudicing the heir. Although this provision is found in the law governing inheritance contracts, the Federal Court of Justice has for decades applied it mutatis mutandis to binding dispositions in joint wills (see, in particular, Federal Court of Justice, judgment of 23 September 1981, IVa ZR 185/80).
The guiding principle is self-interest during one’s lifetime. If someone makes a gift for understandable personal reasons – for example, to secure care and support for themselves or to fulfil a moral obligation – this is permissible. If, on the other hand, assets are set aside shortly before death so that the final heirs are left empty-handed, the gift may be set aside. Where several final heirs have been appointed, each is individually entitled to a claim in accordance with their share, rather than the community of heirs as a whole (Federal Court of Justice, judgement of 10 March 2021, IV ZR 8/20).
The claim becomes time-barred after three years, calculated from the death of the surviving spouse, regardless of whether the heir was aware of the gift (Section 2287(2) of the German Civil Code (BGB)). If a residual heir only finds out about it at a later stage, the time limit has therefore often already expired.
What the children are left with in the first succession
Under the standard provision, the Berlin Will excludes the children from the line of succession upon the first death. No explicit clause is required for this, as anyone who is not named as an heir in the will, even though they would be a statutory heir, is thereby already disinherited.
This disinheritance gives rise to a claim to a compulsory share (Section 2303 of the German Civil Code (BGB)). This claim is directed against the person who has become the sole heir, that is, against one’s own mother or father. The compulsory share does not constitute a share in the estate. Anyone who asserts this claim does not become a co-owner of the house and has no say in what happens to the estate. They may only claim a cash payment.
The situation is different in the case of a separation arrangement. In such cases, the children are reversionary heirs and are therefore heirs in their own right. They may only claim their statutory share if they renounce their status as reversionary heirs, as the appointment of a reversionary heir is regarded as a restriction that triggers a right of election (Section 2306(1) and (2) of the German Civil Code (BGB)).
How much is the statutory share?
The share is always half of the statutory share of the estate. To determine it, the first step is to establish what the person in question would have been entitled to had there been no will. This share is then halved. It is applied to the estate after debts have been deducted, and the assets and their value on the date of death are decisive (Section 2311 of the German Civil Code (BGB)).
An example: A married couple is subject to the statutory matrimonial property regime of community of accrued gains and has two children. The estate of the parent who dies first amounts to 400,000 euros after deduction of debts. Without a will, the surviving spouse would have inherited half, because their share of the inheritance is increased by a further quarter on top of the original quarter as a lump-sum equalisation of accrued gains (Section 1371(1) of the German Civil Code (BGB)). Each child would have been entitled to a quarter; the statutory share for each child is therefore one-eighth, amounting to 50,000 euros.
This calculation assumes that the surviving spouse will in fact become an heir, as only then will the marital gains be settled on a lump-sum basis under inheritance law. If the surviving spouse declines the inheritance, the spouse’s share remains at the standard one-quarter (Section 1371(2) of the German Civil Code [BGB]), and each child’s compulsory share increases to three sixteenths.
If there is only one child, their statutory share of the inheritance would be half, and the compulsory portion would therefore be one quarter of the value of the estate. These figures also change if a different matrimonial property regime has been agreed. Under the regime of separation of property with two children, the spouse and children each inherit one third, and the statutory share for each child is then one sixth.
Gifts made during one’s lifetime increase the statutory share
If the deceased made any gifts during their lifetime, the value of those gifts is added to the estate for the purposes of calculating the statutory share. This gives rise to an additional claim, known as the claim for a supplementary statutory share (Section 2325 of the German Civil Code (BGB)).
Gifts made during the ten years prior to the opening of the succession are taken into account, albeit on a sliding scale. A gift made in the year immediately preceding death counts in full; for each subsequent year prior to death, the value to be taken into account is reduced by one-tenth; after ten years, it is disregarded.
There are two exceptions to this time limit, both of which relate to typical scenarios in Berlin-style wills. In the case of gifts between spouses, the ten-year period only begins upon the dissolution of the marriage. Consequently, if a married couple transfers property or co-ownership shares to one another, these gifts must be included in the first inheritance calculation without any time limit. The situation is similar if the donor continues to make economic use of the gifted property. If the donor reserves a right of usufruct – that is, the right to continue living in the property or to collect the rent – or a comprehensive right of residence over the entire property, the time limit generally does not commence either.
If the estate is insufficient to satisfy the claim for a supplementary payment, the donee may be held liable personally, subject to the conditions set out in Section 2329 of the German Civil Code (BGB). However, this claim becomes time-barred exactly three years after the date of death, regardless of whether the entitled person was aware of the gift (Section 2332(1) of the German Civil Code (BGB)).
Conversely, a gift reduces the statutory share only if the testator has specified that it is to be set off at the latest at the time the gift is made (Section 2315(1) of the German Civil Code (BGB)). This cannot be done retrospectively, for example in a will. An exception applies to gifts to children, which are already subject to equalisation by operation of law and therefore affect the statutory share even without a specific provision (Sections 2050 and 2316 of the German Civil Code (BGB)).
Information, due date and limitation period
The amount of the compulsory share can only be determined once the contents of the estate are known. To this end, section 2314 of the German Civil Code (BGB) provides for a right to information against the heir. A complete inventory of the estate may be requested; if desired, this may take the form of a notarial inventory of the estate, which is drawn up by the notary themselves and is therefore considered more reliable. A valuation of individual items may also be requested, such as an expert’s report for a property. The costs of this are borne by the estate.
The claim arises upon the opening of the succession (Section 2317(1) of the German Civil Code (BGB)) and is due immediately. The heir must therefore, in principle, make payment, even if the assets are tied up in a property, and, if necessary, raise the funds through a mortgage or a loan. Only in very limited exceptional cases may they request a deferral, in particular if immediate payment would force them to give up the family home in which they live (Section 2331a of the German Civil Code (BGB)).
The limitation period is three years. It begins at the end of the year in which the beneficiary became aware of the death and of their disinheritance (Sections 195 and 199 of the German Civil Code (BGB)). If the heir becomes aware of this in March 2026, the limitation period therefore runs until 31 December 2029; after that date, the heir may refuse payment.
A detail of practical significance is set out in Section 2317(2) of the German Civil Code (BGB). The right to a compulsory share is inheritable and transferable; it may therefore be assigned or sold to third parties without the heir’s consent being required.
When the payout is delayed
Normally, the compulsory share is claimed from and paid out by the surviving parent in the usual way. Things become difficult if the information provided is incomplete, if the heir undervalues the property, or if the matter remains at a standstill for years. This is precisely where Erbfinanz can help. We can bear the cost risk of enforcement, so that you do not have to pay for solicitors, expert reports and court costs up front. Legal representation is always provided by a specialist solicitor.
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Clauses that spouses use to counteract this
Because the statutory share may jeopardise the financial security of the surviving spouse in the first instance of inheritance, many wills drawn up in Berlin contain additional clauses.
The penalty clause relating to the compulsory share
The clause penalising the claim for a compulsory share is the most common supplementary provision. A child who claims their compulsory share following the death of the first parent shall not become an heir following the death of the second parent, but shall once again be limited to the compulsory share. Legally, this constitutes a designation of a residual heir subject to a condition subsequent, which therefore lapses as soon as the child makes a claim. The clause does not affect the compulsory share in the first succession, as Section 2303 of the German Civil Code (BGB) is mandatory.
Whether it is triggered is a constant point of contention. According to case law, the child must have claimed the compulsory share in good faith and with knowledge of the clause (Higher Regional Court of Braunschweig, order of 13 February 2025, 10 W 11/25). Merely making a casual enquiry or accepting a payment does not trigger it (Hamburg Higher Regional Court, order of 5 October 2018, 2 W 104/16).
A mere request for information under Section 2314 of the German Civil Code (BGB) is generally not sufficient either. The Higher Regional Court of Frankfurt has ruled that a request to amend an estate inventory does not in itself constitute a claim to a compulsory share (order of 1 February 2022, 21 W 182/21). Anyone who initially seeks information only therefore normally has nothing to lose.
The wording of the relevant clause remains decisive. If it states that the child must have claimed and received the compulsory share, additional funds must have been paid out of the estate (Higher Regional Court of Frankfurt, order of 21 February 2023, 21 W 104/22). The courts’ rulings are inconsistent where parents and the child reach an amicable agreement. The Higher Regional Court of Braunschweig did not regard an amicable settlement as a forfeiture. By contrast, the Higher Regional Court of Zweibrücken regarded a payment demand made by a solicitor as a breach of the parents’ wishes even where the mother cooperated and paid (order of 9 July 2025, 8 W 56/24). A ruling by the highest court is still pending.
Whether it is worth waiting to have a child depends on whether there is likely to be anything left to inherit when the second parent dies. If there is a high need for care, or if the surviving parent plans to remarry, the outcome may turn out differently than expected.
The Jastrow clause
The Jastrow clause goes one step further. In addition to the penalty clause, children who do not claim their inheritance upon the first death receive a bequest which accrues upon the first death but only becomes payable upon the death of the survivor. This ensures that the longer-living spouse remains financially secure, whilst the loyal children have a secure position.
The effect under the law on the reserved share lies elsewhere. In the first succession, the bequest does not reduce the reserved share of the child making the claim, because bequests and conditions are not deducted when determining the value of the estate (Section 2311(1), first sentence, of the German Civil Code (BGB)). In the second succession, however, it constitutes a liability of the estate and reduces the estate from which the statutory share is calculated. This is precisely the purpose of the clause.
From a tax perspective, the Federal Fiscal Court confirmed in 2023 that this results in a significant disadvantage. The surviving spouse is not permitted to deduct the liability arising from the bequest because it is not yet due. The child must later pay tax on the legacy as an acquisition from the surviving spouse, and only if the child is also the surviving spouse’s heir may they deduct the legacy liability in that context (Federal Fiscal Court, judgement of 11 October 2023, II R 34/20). A constitutional complaint has been lodged against the decision (1 BvR 1381/24). Until further notice, the clause is considered to pose a tax risk.
The Remarriage Clause
A remarriage clause is intended to prevent assets from passing to another family as a result of the surviving spouse’s remarriage. There is no specific statutory provision for this; it is purely a matter of contractual arrangement. A common arrangement is one whereby the surviving spouse remains the sole heir as long as they do not remarry, and retroactively becomes merely a preliminary heir as soon as they do so. The children then step in as reversionary heirs (as already held by the Federal Court of Justice, decision of 6 November 1985, IVa ZB 5/85). Often, however, a legacy is provided for instead, which, in the event of remarriage, transfers a portion of the estate to the children.
The freedom to marry sets a limit. If financial pressure becomes so great that entering into a new marriage becomes effectively impossible, the clause may be contrary to public policy (Section 138 of the German Civil Code (BGB), Article 6(1) of the Basic Law (GG)). Moderate provisions, on the other hand, are recognised.
However, such a clause comes at a price that hardly anyone takes into account. Anyone who expressly provides for the event of remarriage has clearly given it due consideration, and this therefore generally precludes a challenge under Section 2079 of the German Civil Code (BGB) (Section 2079, second sentence, BGB). The clause therefore denies the surviving spouse precisely the recourse that a new marriage would otherwise afford them.
Waiving one’s statutory share: the only way to do so with the child’s consent
The statutory share in the first succession can only be reliably waived with the child’s consent. A waiver of the statutory share under section 2346(2) of the German Civil Code (BGB) is a contract between the testator and the beneficiary, which must be notarised (section 2348 BGB). It may be limited to the first succession, so that the status as a final heir remains unaffected. If a minor child waives their right, authorisation from the family court is also required.
In practice, such a waiver is often agreed in return for a settlement, such as the early transfer of a property or a cash payment. This costs money and requires an open discussion within the family, but in return it creates a clarity that a penalty clause cannot achieve.
Inheritance tax: the cost of the ‘one-size-fits-all’ solution
Tax allowances
The amount of inheritance tax payable depends on the family relationship. The amounts set out in Section 16 of the Inheritance Tax Act have remained unchanged since 2009:
| Purchaser | Tax-free allowance |
|---|---|
| Spouse and registered civil partner | 500.000 € |
| Children and stepchildren, as well as grandchildren whose parent has already died | 400.000 € |
| Grandchild, provided that the testator’s child who is the link between them is still alive | 200.000 € |
| Parents and grandparents in the event of death, great-grandchildren | 100.000 € |
| Siblings, nieces and nephews, children-in-law, divorced spouses | 20.000 € |
| all other purchasers, such as non-relatives | 20.000 € |
The last two groups are tax brackets II and III. The tax-free allowance is the same, but the tax rates differ significantly; in tax bracket III, they are consistently higher.
The surviving spouse also receives a pension allowance of 256,000 euros (Section 17(1) of the Inheritance Tax Act). However, this is reduced by the present value of the survivor’s pension and is often largely exhausted in the case of a standard widow’s or widower’s pension. Children up to the age of 27 are entitled, depending on their age, to a graduated pension allowance of between €10,300 and €52,000, which is likewise reduced by the amount of any orphan’s pension (Section 17(2) of the Inheritance Tax Act).
A separate exemption applies to married couples who own a property. The family home in which the couple lived is transferred tax-free to the surviving spouse if the latter moves in immediately or continues to live there and uses the property themselves for ten years (Section 13(1)(4b) of the Inheritance Tax Act). There is no limit on the size of the property. For children, the same exemption applies in the second instance of inheritance only up to 200 square metres of living space (Section 13(1)(4c) of the Inheritance Tax Act), and it is conditional upon the child moving in themselves. This is rarely the case for adult children who have their own homes.
Discussions on reforming inheritance tax have been ongoing since early 2026, but no draft bill has yet been tabled. However, the only aspects that have remained unchanged since 2009 are the tax-free allowances. The valuation of property was last tightened in 2023, which brings estates containing property closer to the exemption limits in mathematical terms.
Why the Berlin will can prove costly from a tax perspective
The tax allowances for the children following the death of the first parent remain unused. Without an inheritance, no tax allowance applies, and it cannot be transferred. With two children, this means a loss of 800,000 euros.
In addition, the same assets are subject to tax on two separate occasions: first from the first deceased to the spouse, and then from the spouse to the children. The Federal Fiscal Court considers this to be consistent with the system, as two different testators and two different beneficiaries are involved. The ‘separation’ solution, however, does not help in this regard. The reversionary heir generally pays tax on their inheritance as if it originated from the preliminary heir. Although they may, upon application, base their tax liability on their relationship to the original testator, they are still only entitled to the tax-free allowance once in total (Section 6(2) of the Inheritance Tax Act).
Finally, the progressive tax system comes into play – that is, the tax rate that rises as the value of the inheritance increases. Because the family’s entire estate is passed on to the children in a single inheritance rather than being divided between two estates, this inheritance is more likely to fall into a higher tax bracket. The higher rate then applies to the entire amount, mitigated only by a special rule for amounts just above the threshold (Section 19(3) of the Inheritance Tax Act).
If the total value of the estate is below the tax-free allowances, there is no disadvantage whatsoever. For many families, therefore, the tax issue is not a reason to oppose the Berlin Will, but is simply irrelevant.
What mitigates this disadvantage
If both spouses die within ten years, Section 27 of the Inheritance Tax Act (ErbStG) reduces the tax on the same estate, on a sliding scale from 50 per cent in the first year to 10 per cent in the ninth and tenth years. This is subject to the condition that tax was actually payable on the initial acquisition. If the first inheritance remains tax-free due to the spousal allowances, the reduction does not apply.
A second approach is used less frequently. If a child claims their statutory share following the death of the first parent, this acquisition is attributed to the first inheritance and utilises the tax-free allowance of 400,000 euros applicable in that case. In the case of the surviving parent, the claimed compulsory share is deductible (Section 10(5)(2) of the Inheritance Tax Act). For the family as a whole, claiming the compulsory share may therefore be more advantageous than refraining from doing so. If a child later becomes an heir of the surviving parent, they may even subsequently claim the statutory share against themselves, provided the claim has not yet become time-barred under civil law (Federal Fiscal Court [BFH], judgements of 5 February 2020, II R 1/16 and II R 17/16).
Anyone wishing to plan ahead when drawing up a will should make use of bequests in favour of their children, which take effect upon the first death and make use of the tax-free allowance. In the case of a so-called ‘super-bequest’, the surviving spouse may determine for themselves, within a specified group of persons, who receives what and when (§§ 2151, 2153, 2156 BGB). According to the reasoning in recent case law on the Jastrow clause, the point at which the bequest becomes due is the critical factor. If it is deferred entirely until the death of the surviving spouse, the tax allowance in the first succession is at risk.
When life changes
Separation and divorce
A Berlin will does not become invalid simply because a couple separate, and even years of living apart do not alter this. Many people who have separated assume the opposite, and this misconception has already turned many a succession arrangement on its head.
The will only becomes invalid once the marriage has been legally divorced or annulled. The same applies where, at the time of death, the conditions for divorce were met and the testator had filed for divorce or consented to it (Section 2077(1) of the German Civil Code (BGB)).
In the case of a joint will, the legal consequence is particularly severe. Under Section 2268(1) of the German Civil Code (BGB), the will is then invalid in its entirety, including the provisions in favour of the children. It remains valid only to the extent that it can be assumed that this was also the intention in the event of divorce (Section 2268(2) of the German Civil Code (BGB)). Whether this is the case is decided later by a court on the basis of evidence, which is usually lacking. For this reason, every will drawn up in Berlin should include an explicit provision covering the event of divorce.
Remarriage
If the surviving spouse remarries, the old relationship and the new family come into conflict. The new spouse is entitled to a compulsory share of the estate but, because of the existing relationship, cannot be appointed as an heir unless a challenge under Section 2079 of the German Civil Code (BGB) is successful.
Following the death of the surviving spouse, the new spouse’s claims are directed against the final heirs, that is, the children from the first marriage. They are then entitled to the same claims as those described above for a renouncing spouse, provided that the new marriage was also conducted under the statutory matrimonial property regime (Section 1371(2) of the German Civil Code (BGB)). In financial terms, the equalisation of accrued gains usually carries greater weight than the compulsory share.
Blended families
The ‘one-size-fits-all’ solution poses a risk that particularly affects blended families. If the surviving spouse inherits everything and subsequently dies without a valid final will and testament, the children of the spouse who died first will receive nothing. They are not related to the surviving spouse and are therefore not statutory heirs.
For families with children from previous relationships, the traditional Berlin will is therefore rarely the right choice. Separation arrangements, bequests or an inheritance contract usually better safeguard their interests in such cases.
Two scenarios that call for a different solution
In addition to the cases already mentioned, there are two situations in which a simple Berlin will is likely to be detrimental.
The first concerns families in which a child is dependent on social security benefits. The social security authority may assume the right to a compulsory share under Section 93 of SGB XII and assert it itself, even if the child had no intention of claiming it. The inheritance then goes not to the family but to the benefits provider. For such cases, legal practice has developed specific arrangements known as ‘disability wills’, which combine the appointment of heirs, reversionary and subsequent inheritance, and the execution of the will.
The second concerns business assets. The statutory share is due immediately, and if the assets are tied up in machinery, stock or business premises, a single claim can leave the business in a liquidity crisis. In such cases, it is common practice to arrange for the statutory share to be waived in advance in return for a settlement.
Where disputes arise in practice
In court, the same questions keep cropping up in relation to the ‘Berlin will’; two of them arise in proceedings for a certificate of inheritance before the probate court, and two in civil proceedings concerning the statutory share.
The most common issue concerns interpretation. Was a particular arrangement reciprocal or not? Because the spouses have rarely put anything in writing, the court has to piece together, from the wording and family circumstances, what two people meant thirty years ago. Of all the matters in dispute, this intention is the hardest to prove.
Disputes over the value of a property are almost just as common. The statutory share is based on the market value on the date of death – that is, the price that could be realised on the market – and not on the earlier purchase price or a value for tax purposes. In the case of family properties, there can easily be a six-figure difference between the heir’s valuation and that of the person entitled to the statutory share.
A third area concerns the provision of information. Heirs submit incomplete inventories or delay drawing them up, and because a claim cannot be quantified without this information, this is an effective way of dragging things out.
This leaves the question of testamentary capacity, which is often called into question, particularly in the case of wills drawn up in the final years of a person’s life. Proving this is difficult and relies on medical records, witnesses and expert reports. A notarised will reduces this risk, as the notary assesses the testator’s capacity to make a will and documents their findings.
Frequently Asked Questions
Is a ‘Berliner Testament’ valid without a notary?
Yes, a handwritten will is sufficient. A notary is only required if a unilateral revocation is to be declared, a binding disposition is to be contested, a gift is to be revoked on the grounds of serious misconduct, or a waiver of the statutory share is to be agreed.
How much does a Berlin will cost?
Nothing in handwritten form. Anyone who has it filed with the local court pays a one-off fee of 82 euros plus twice the registration fee of 15.50 euros. At a notary’s office, the fee is based on the joint assets; for 400,000 euros, the fee is 1,570 euros plus out-of-pocket expenses and VAT.
Can a Berlin will be amended at a later date?
Whilst both are alive, jointly at any time; unilaterally, only through a notary. Following the death of the first spouse to die, the surviving spouse is bound by the terms of the agreement, unless a right to amend has been agreed.
Does the surviving spouse have to share the inheritance with the children?
Not as heirs, as the children are excluded from the first succession. They may, however, make a claim – specifically, for their statutory share in cash.
Can unmarried couples draw up a Berlin will?
No, the joint will is reserved for spouses and registered civil partners. For everyone else, a notarised inheritance agreement may be considered.
How long does a child have to claim their statutory share following the death of the first parent?
Three years, calculated from the end of the year in which the heir became aware of the death and disinheritance. After that, the heir may refuse to make the payment.
If you’re still not sure where you stand
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This is what your analysis shows
The Berlin Will is a useful tool for the purpose for which it is intended. It provides security for the surviving partner and keeps the estate intact. This security comes at the cost of inflexibility, which only becomes apparent when life has taken a different turn from what was planned. Two questions determine almost everything. How much freedom should the surviving partner retain, and what happens to the children when the first inheritance is distributed? If both issues are clarified at the time of drafting, the family will be spared most disputes later on.
Note on the content of this guide
The articles in this guide are intended to provide general information on inheritance law matters. They do not constitute legal advice and are no substitute for advice in individual cases. Whether a claim exists, and if so, to what extent, always depends on the circumstances of the specific case. Only a solicitor can provide a definitive assessment; in matters of inheritance law, this is usually a specialist solicitor in inheritance law.
All content is carefully researched and regularly reviewed. However, legislation and case law are subject to change. We are therefore unable to guarantee that the content is accurate, complete or up to date.
Note on the use of artificial intelligence
The articles in this guide are produced with the help of artificial intelligence and are editorially reviewed and approved.