The compulsory portion in a Berlin will and what children should know

When the will is read out, many children find out for the first time what their parents agreed years ago. The father and mother have named each other as sole heirs; the children are only to inherit after the death of the second parent. Lawyers refer to this arrangement as a ‘Berlin will’. For the time being, this means that the surviving parent receives everything and the children are excluded from the line of succession. However, they do not walk away empty-handed. Under the law, they have an immediate entitlement to a compulsory share of the estate, which applies even if the will makes no mention of them whatsoever. This article explains how this entitlement arises, how much it amounts to, which clause in the will should be read before making any claim, and how the payment is made in practice.

Why the Berlin will initially disinherits the children

At the Berlin will Spouses or registered civil partners appoint each other as sole heirs and designate their children as so-called ‘final heirs’ (Section 2269 of the German Civil Code (BGB)). A ‘residual heir’ is someone who only inherits upon the death of the partner who survives the other. The idea behind this is to provide security. The surviving parent should be able to remain in their familiar home, have access to their joint savings, and not have to negotiate the division of the estate with the children whilst still in mourning.

The downside becomes apparent in the first instance of inheritance. Because the surviving partner inherits everything, the children are disinherited at that very moment. This requires neither malicious intent nor an explicit clause in the will. Anyone who is simply overlooked as a statutory heir is already disinherited. Many parents are completely unaware of this consequence when drafting their wills; they wish to give their children a lower priority, not to punish them. This does not alter the legal situation. However, the law does provide for a remedy specifically for this situation.

What the statutory share is and who is entitled to it

The compulsory share guarantees the closest relatives a minimum share of the value of the estate (Section 2303 of the German Civil Code (BGB)). It is purely a monetary claim against the heir; in the case of a ‘Berlin will’, this means against the surviving parent. Anyone claiming the compulsory portion does not become a co-owner of the family home and cannot demand specific items; instead, they may only claim payment of a sum of money – no more and no less.

Only three groups are entitled to a compulsory share: descendants (i.e. children and, in their absence, grandchildren), and the spouse or registered civil partner. In addition, the deceased’s parents are entitled, but only if there are no descendants. Siblings, nieces and nephews are never entitled to a compulsory share. In the case of a ‘Berlin will’, the entitlement typically applies to the joint children in the first instance of inheritance.

Three characteristics of this claim are important in practice. It arises on the date of death and is immediately due; a child therefore does not have to wait until the second succession (§ 2317 BGB). It does not require a certificate of inheritance; as a rule, a copy of the will and the minutes of the opening of the estate by the probate court are sufficient as proof. Furthermore, it is inheritable and transferable, so it can also be sold.

How much the statutory share amounts to

The amount is determined by two factors: the statutory share and the value of the estate.

This share is always half of the statutory share of the inheritance, i.e. the share to which the child would have been entitled in the absence of a will. Under the statutory matrimonial property regime of community of accrued gains – which applies in the absence of a marriage contract – the surviving spouse inherits half of the estate alongside the children, whilst the other half is divided amongst the children. If there are two children, each child’s statutory share is therefore one quarter, and their compulsory share is one eighth. An only child would receive one quarter. Under other matrimonial property regimes or with a different number of children, the shares change. The personal share can be calculated using the Legal share calculator Find out in just a few steps.

When determining the value of the estate, only the assets of the deceased parent are taken into account, valued as at the date of death (Section 2311 of the German Civil Code (BGB)). If the house was jointly owned by both parents, as a rule only half of the co-ownership share forms part of the estate; the same applies to joint bank accounts. In the case of property, the market value is decisive – that is, the price that could be realised on the market on the date of death, not the earlier purchase price. Debts reduce the value, such as an outstanding loan balance, as do third-party rights such as a registered right of residence.

The deceased father leaves behind a half-share in the joint home, with a market value of 250,000 euros, and personal savings of 50,000 euros; he is also liable for 20,000 euros in outstanding debt. The estate is therefore worth 280,000 euros. With two children and each entitled to one-eighth of the estate, each child is entitled to 35,000 euros.

If the deceased made any substantial gifts during the ten years prior to their death, an additional Claim to a supplementary compulsory portion apply (Section 2325 of the German Civil Code (BGB)). The value of any gifts is then added back to the estate on a pro rata basis: in full for the year immediately preceding death, and reduced by one-tenth for each preceding year. In the case of gifts between spouses, the ten-year period does not begin to run until the end of the marriage. A reserved usufruct – that is, the continuing right to use or let the gifted property – may defer the start of the period, as may a comprehensive right of residence.

The penalty clause relating to the compulsory share and its consequences

Many wills drawn up in Berlin contain a penalty clause relating to the statutory share. This clause essentially stipulates that a child who claims their statutory share following the death of the first parent shall receive only that statutory share, even after the death of the second parent. Their status as sole heir is then forfeited, and their share of the subsequent inheritance is likewise reduced to a monetary claim amounting to half the statutory share. Parents use this clause to prevent the surviving parent from being deprived of liquidity at an early stage.

For children, this means that making a claim today could cost them a larger share of the inheritance tomorrow. Whether this is worth it depends on the financial circumstances and on how the clause is worded. Some versions take effect as soon as the statutory share is seriously claimed, whilst others only come into play upon judicial enforcement or an actual payment. The exact wording is crucial; in cases of doubt, a specialist solicitor in inheritance law will assess how the wording is to be interpreted. If no such clause exists, the status as a residual heir remains, in principle, unaffected by the assertion of a claim.

When it’s worth making a claim and when it’s wiser to wait

The presence of a penalty clause does not automatically undermine the claim, just as its absence does not automatically support it.

One argument in favour of making a claim is that a residual inheritance is a promise for the future, not a guarantee. By the time the second inheritance is due, the estate may have shrunk considerably due to living expenses, care costs or unfortunate decisions. If the surviving parent remarries, the new partner acquires their own inheritance and compulsory portion rights, which further reduce the size of the eventual estate. And any child who currently needs money themselves – for example, to start a family or pay off their own loans – will receive, via the compulsory share, a sum that would otherwise remain tied up indefinitely.

This arrangement may also make sense from a tax perspective. Each child is entitled to an inheritance tax allowance of 400,000 euros from each parent (Section 16 of the Inheritance Tax Act). Under the traditional ‘Berlin will’, the allowance from the parent who dies first remains unused, because the estate is only transferred to the children upon the second parent’s death and is then taxed as a single lump sum. Claiming a compulsory share utilises the first allowance whilst simultaneously reducing the taxable inheritance of the surviving spouse. In the case of larger estates, families therefore sometimes deliberately and by mutual agreement claim the compulsory portion. Whether this brings advantages in a specific case and how any existing penalty clause would react to such an approach should be clarified in advance through tax and inheritance law advice.

Arguments against this claim include a small estate, which would scarcely cover the costs, and situations in which the surviving parent’s livelihood would be significantly jeopardised. Anyone wishing to waive their claim voluntarily does not need to sign anything; it is sufficient simply not to assert the claim. If the waiver is to be formally agreed, for example in return for a settlement payment, an agreement with the heir – set out in writing for evidential purposes – is sufficient for a claim that has already arisen. A waiver of the statutory share, which must be notarised, is a different matter; it is concluded with the surviving parent and relates to that parent’s future estate.

From the right to information to payment

If the decision is made to pursue the claim, the proceedings follow a straightforward, step-by-step process.

1. Obtain the documents. Once the will has been opened, the probate court will usually also inform the disinherited children and send them a copy of the will together with the minutes of the opening. If this does not happen, the documents can be requested from the probate court at the deceased’s last place of residence for a small fee.
2. Request information. The surviving parent may be required to provide a detailed inventory of the estate (Section 2314 of the German Civil Code (BGB)), listing all assets, all debts and any gifts made over the last ten years. Anyone who does not trust the information provided may request a notarial inventory of the estate and, in the case of property, an expert valuation. The costs of this are borne by the estate, not by the child.
3. Quantify the claim. The specific amount is derived from the quota and the value of the estate, net of debts.
4. Request payment. The The request is addressed to the heir in writing, with reasonable notice and verifiable proof of delivery, for example by registered post. The probate court has no jurisdiction in this matter; it merely validates wills and has no role in the payment of the estate.
5. If necessary, take legal action. If the heir fails to pay despite being asked to do so, the next step is to bring a case before a civil court, often in the form of a staged claim, which first seeks a declaration and then payment. A solicitor will then represent you; ideally, this should be a specialist in inheritance law.

Throughout the entire process, it is advisable to keep a systematic record of correspondence, deadlines and financial details. This may sound trivial, but it often determines how quickly the matter is resolved and the final amount involved.

The three-year limitation period

The right to a compulsory share The limitation period is normally three years (Sections 195 and 199 of the German Civil Code (BGB)). The limitation period begins at the end of the year in which the child became aware of the death and of their disinheritance. If, for example, the mother dies in the spring of 2026 and the children have been aware of the will since it was opened, the claim becomes time-barred at the end of 31 December 2029. Irrespective of whether the children were aware of the will, the right to enforce the claim expires at the latest thirty years after the opening of the succession. Separate rules apply to claims against beneficiaries, which may expire earlier. Anyone wishing to remain silent for the time being out of consideration for others would therefore be well advised to keep a close eye on this time limit and to set out any agreements with the heir in writing.

When assets are tied up in the house

The most common objection raised by the surviving parent is that the money is tied up in the house and is not available. Legally speaking, this does not change anything at first. The compulsory share is due upon the opening of the succession, and the heir must arrange for payment, whether from savings, by taking out a mortgage on the property or, if necessary, by selling it. The child cannot force a sale, as they have not become the owner. Conversely, merely pointing out that the assets are tied up does not protect the heir from the claim.

Only in very exceptional cases may the heir request a deferral of payment (Section 2331a of the German Civil Code (BGB)). This is subject to the condition that immediate payment would cause undue hardship, for example if it would force the heir to give up the family home in which they live. The thresholds for this are high, and in practice the provision plays a minor role. Far more often, the parties involved agree on instalments or a later payment date. Such agreements often provide the best way to reconcile the claim with family harmony, but they must be set out in writing, not least with regard to the limitation period.

If the payment is blocked or delayed

Normally, the compulsory share is claimed from the heir in the usual way and paid out by them. Things become difficult if the payment is obstructed, the value of the estate is set too low, or the matter is dragged out. This is precisely when 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. The process is described in the Page on the settlement of the compulsory share. Legal representation is always provided by a specialist solicitor.

Your non-binding enquiry It’s free, discreet and takes just a few minutes.

Common points of conflict and mistakes

The most costly mistake is the property value set too low. Heirs are keen to quote the purchase price from twenty years ago or a conservative estimate, but it is the current market value that counts. Anyone who accepts these figures without checking them and does not request a valuation report can easily end up giving away five-figure sums. It can prove just as costly if lifetime gifts are simply overlooked in the calculation, even though there would be a right to a supplementary payment.

A second category of errors relates to time limits and formalities. Some children wait for years out of consideration for others, only to discover that their claim has become time-barred. Others hastily turn down what was intended for them, thereby usually forfeiting their statutory share as well. The fact that, despite The right of renunciation is retained, is a very limited exception; such measures must first be subject to expert review. Anyone who has been included in a will but has been bequeathed less than the statutory share is not, incidentally, obliged to accept this; the difference can usually be claimed as the residual statutory share (Section 2305 of the German Civil Code (BGB)).

The third source of conflict is misconceptions on both sides. Some children expect to have a say in matters concerning the family home or individual mementoes, which a purely financial claim does not entitle them to. Conversely, surviving parents fear that such a claim will inevitably mean having to move out of the family home, which is not necessarily the case when viewed in such broad terms. Many tensions are eased when both sides understand what is and isn’t covered by the law.

That leaves the human aspect. A claim for a compulsory share is directed against one’s own father or mother, and many a dispute over figures is, in truth, a dispute over hurt feelings. A matter-of-fact tone and transparency regarding the figures often prevent a legitimate claim from turning into a lasting rift; sometimes, joint counselling can also help.

When a quick payout is more important than the maximum amount

Sometimes, a secure and swift settlement is more important than the highest possible sum, particularly if the dispute would otherwise involve your own family. In this case, you can sell your statutory share claim to Erbfinanz and receive payment promptly, without having to settle the dispute with the heir yourself. What happens to the claim afterwards is our concern. The purchase price remains below the amount that could be obtained following successful enforcement. Anyone who has the time and remains in contact with the surviving parent is therefore usually better off asserting the claim themselves.

We’ll discuss whether this approach is right for your situation in a non-binding enquiry.

Frequently Asked Questions

Will I lose my future inheritance if I claim my statutory share now?

Only if the will contains a clause penalising the claim for a compulsory share and the conditions for this are met. In that case, upon the second opening of the succession, you will not become the final heir, but will once again receive only the compulsory share. Without such a clause, the claim generally leaves your status as the final heir unaffected. The exact wording of the will is decisive.

Does the penalty clause also apply to my siblings?

As a general rule, no. The standard provision applies only to the child who actually claims their statutory share; the other siblings remain as residual heirs. Their share may even increase if the will stipulates that the portion that becomes available is to pass to them. However, there are also versions that cover all descendants as soon as one of them makes a claim.

Can the surviving parent amend the Berlin will at a later date?

Mutual dispositions are, in principle, binding following the first death (Section 2271 of the German Civil Code (BGB)). The surviving parent is then generally no longer able to unilaterally revoke the appointment of the children as final heirs, unless the will expressly permits such changes. However, they may continue to dispose of their assets during their lifetime; the value of the subsequent inheritance is therefore not guaranteed.

Are stepchildren entitled to a compulsory share under a Berlin will?

Only the descendants of the deceased in question are entitled to a compulsory share, i.e. biological and adopted children. A stepchild is not entitled to a compulsory share from their step-parent, but is entitled to one from their own parent. In blended families, it is therefore important to distinguish precisely whose estate is involved.

Can grandchildren also claim their statutory share?

Grandchildren only get a look-in, if the child of the deceased from whom they are descended is no longer alive – in the most common practical scenario, that is, if that child has themselves already died (Section 2309 of the German Civil Code (BGB)). As long as that child is able to claim their statutory share themselves, the grandchildren have no claim of their own.

Temporarily disinherited, but not without rights

A Berlin will places children in a subordinate position in the first succession, but it does not deprive them of their rights. The compulsory share guarantees them a financial entitlement amounting to half the statutory share of the inheritance from the first instance of succession onwards, regardless of whether the will mentions them. Whether children claim this share, seek an amicable solution with the surviving parent, or deliberately wait until the second instance of succession is entirely up to them. This decision is best made once their own share is known, the value of the estate has been realistically assessed, the wording of the will has been checked and the three-year time limit is kept in mind. And if there are complications with the payout, the Overview of options in cases of disinheritance, what support is available.