A will in favour of the children, an inheritance agreement drawn up years ago, or a disposition in which one’s own name simply does not appear. For surviving spouses, this is not uncommon once the will has been opened. Anyone who is overlooked in this way is legally disinherited, even if the word does not appear anywhere in the will. They are therefore not left empty-handed. The law guarantees spouses and registered civil partners a compulsory share, and for no other beneficiary is the calculation so complex. The amount depends not only on who else is inheriting, but also on the matrimonial property regime. This article explains how to determine your share, what value counts towards it, and how your entitlement is converted into a payout.
A financial claim, not a share of the inheritance
The compulsory share amounts to half the value of the statutory share of the estate and is payable exclusively in cash (Section 2303 of the German Civil Code (BGB)). Anyone who is only entitled to a compulsory share does not become a co-heir. They do not receive any assets from the estate, have no say in its distribution and no share in the family home. What they do have is a monetary claim against the heirs. This claim arises upon the opening of the succession and is immediately due (§ 2317 BGB).
Nevertheless, it is rarely paid out automatically. The statutory share must be claimed from the heirs, not from the probate court, as the court merely opens the will and has nothing to do with the payment. Incidentally, it is not only those who have been completely overlooked who are entitled to it. Even those who are named as heirs or who receive a bequest, and who therefore receive less than their statutory share, may claim the difference (Section 2305 of the German Civil Code (BGB)). Both scenarios occur regularly in the case of spouses.
Why the matrimonial property regime determines the amount
The calculation is always the same. First, the share that the spouse would have received under the rules of intestate succession is determined; this share is then halved. Where the deceased has children, the spouse inherits a quarter under the basic rule; where the deceased has parents or siblings, the spouse inherits half (Section 1931 of the German Civil Code (BGB)). This basic share varies depending on the matrimonial property regime, and it is this that determines the actual value of the compulsory portion.
Community of accrued gains: the standard statutory provision
In the absence of a notarised marriage contract, married couples are subject to the community of accrued gains regime. If this regime is terminated by death, the law requires a settlement for the increase in assets during the marriage, and provides for two methods of doing so.
If the surviving spouse becomes an heir or receives a bequest, the equalisation is calculated as a lump sum. Their statutory share of the estate increases by a quarter (Section 1371(1) of the German Civil Code (BGB)), meaning that, where there are children, it rises from a quarter to half. This increased share is used to calculate the so-called ‘larger compulsory portion’, which amounts to one quarter of the estate. This serves as the benchmark when a spouse who has been bequeathed a share wishes to increase their bequest up to the level of the compulsory portion.
If, on the other hand, the spouse is completely disinherited – that is, receives neither a share of the estate nor a bequest – the law reverts to the matrimonial property regime (Section 1371(2) of the German Civil Code (BGB)). In that case, two separate claims co-exist. The first is the specific equalisation of accrued gains, as would be calculated in the event of a divorce; as a rule, this amounts to half the sum by which the deceased’s increase in assets during the marriage exceeded that of the spouse. The second is the so-called ‘small compulsory portion’, which is calculated on the basis of the non-increased share of the estate; alongside children, this amounts to one-eighth of the estate. A spouse who has been completely disinherited does not have the option of claiming the ‘large compulsory portion’ instead. The Federal Court of Justice ruled on this as early as the 1960s.
Two peculiarities of this calculation are often overlooked. The claim for equalisation is a liability of the estate and is therefore deducted from the estate before the small compulsory share is calculated. Furthermore, what the deceased inherited or received as a gift does not, in essence, count towards their accrued gains; only the increase in value of such assets is taken into account. Whether the specific equalisation payment yields a substantial sum or almost nothing therefore depends heavily on the origin of the assets.
Appointed as an heir, and yet still not enough
Often, the spouse is not entirely disinherited, but is instead granted a small share of the estate or a bequest. If the value of this is less than the large statutory share, the spouse is entitled to the difference (Section 2305 of the German Civil Code (BGB)). In this situation, no additional specific equalisation of accrued gains is payable.
There is, however, a way out that is available only to a spouse under the community of accrued gains regime. They may renounce the inheritance or bequest and still claim the small compulsory share together with the specific equalisation of accrued gains (Section 1371(3) of the German Civil Code (BGB)). For any other beneficiary, a renunciation would generally result in the loss of the compulsory share. Whether this course of action is worthwhile is purely a matter of calculation and depends on the actual amount of the accrued gains. The time limit for this is short, usually six weeks from the date of becoming aware of the inheritance (Section 1944 of the German Civil Code (BGB)). Those affected usually have a specialist solicitor in inheritance law draw up the comparative calculation during this period.
Separation of property and community of property
If the spouses have agreed to separate property, there is no equalisation of accrued gains. Instead, a separate rule on inheritance shares applies. Where there is one child, the spouse and the child each inherit half; where there are two children, all three inherit one-third each (Section 1931(4) of the German Civil Code (BGB)). Where there are three or more children, the share remains at one quarter. The compulsory share is therefore one quarter where there is one child, one sixth where there are two children, and one eighth of the estate where there are three or more children.
In the now rare form of community of property, the share of the estate allocated to children remains at one quarter and the compulsory share at one eighth, although the estate comprises only the deceased’s share of the joint assets.
The same mechanism applies to childless marriages, but with higher starting percentages. If, for example, the deceased’s parents are still alive, the smaller compulsory share is one quarter and the larger one is three-eighths of the estate.
Matrimonial property regimes in figures
In the most common scenario – where there is a spouse as well as the deceased’s children – the following shares apply.
| Constellation alongside children | Inheritance share as the basis for calculation | Claim your |
|---|---|---|
| Community of accrued gains, completely disinherited | 1/4 (not raised) | 1/8, plus specific equalisation of accrued gains |
| Community of accrued gains: taken into account, but below the threshold | 1/2 (raised) | Increase to 1/4 |
| Separation of property, one child | 1/2 | 1/4 |
| Separation of property, two children | 1/3 | 1/6 |
| Separation of property, three or more children | 1/4 | 1/8 |
| Community of property | 1/4 | 1/8 |
Two examples involving the same estate of 600,000 euros – comprising a property worth 500,000 euros and 100,000 euros in bank deposits – illustrate what this means in euros. The deceased leaves behind two children from the marriage in each case; the surviving spouse has been disinherited.
Under the statutory matrimonial property regime, it is the increase in assets that matters. If, during the marriage, the deceased accrued an increase in assets that was 400,000 euros greater than that of the surviving partner, the specific equalisation payment amounts to 200,000 euros. This leaves 400,000 euros for the calculation of the compulsory share; one-eighth of this is 50,000 euros. In total, the partner receives 250,000 euros. If, on the other hand, there was hardly any increase in assets – for example, because the assets derive mainly from an inheritance received by the deceased – the calculation remains at one-eighth of 600,000 euros, i.e. 75,000 euros.
In the case of separate property, the calculation is simpler. The notional share of the estate, alongside two children, amounts to one third; the compulsory portion is one sixth, which is 100,000 euros.
The same estate, the same family, and depending on the matrimonial property regime and the history of the assets, the outcome ranges from 75,000 to 250,000 euros. General statements regarding the amount of the spouse’s statutory share are therefore of little use. The first step in any claim is to clarify which matrimonial property regime applied and how the assets of both partners developed during the marriage.
Valuing an estate correctly
The rate is only one factor; the other is the value to which it is applied. The decisive factor is the value of the estate on the date of death, i.e. all assets minus liabilities (Section 2311 of the German Civil Code (BGB)). Subsequent developments do not count, neither a rise in share prices in a securities portfolio nor a change in property prices on the property market up until the payout.
In the case of property, the market value on the date of death must be used, i.e. the price that could be realised if the property were sold on the open market. The previous purchase price or tax values are not a suitable basis for this. Factors that reduce the value include encumbrances, such as an outstanding loan, a usufruct or a right of residence in favour of third parties. Even the choice of valuation method – typically market value, income value or asset value – can significantly affect the result.
This figure is therefore the subject of the most frequent disputes. Heirs have a clear interest in low valuations, as any undervaluation reduces the amount they are required to pay. For the beneficiary, the stakes are high. If the property is valued 100,000 euros too low, the statutory share shrinks by between 12,500 and 25,000 euros, depending on the share. In the case of a disinherited spouse in a community of accrued gains, the loss can be significantly greater, as an undervaluation also reduces the equalisation of accrued gains.
The law provides the beneficiary with an effective means of doing so. They may request that the value of individual items in the estate be determined; in the case of property, this means obtaining an expert’s report. The costs of this are borne by the estate (Section 2314 of the German Civil Code (BGB)), so the beneficiary does not incur any financial risk in making this request.
If the payment is blocked or delayed
Normally, the statutory share is claimed and paid out to the heirs in the usual way. Things become difficult if the heirs make it hard to secure payment, undervalue the property or drag the matter out. This is precisely when Erbfinanz steps in to help. We can bear the cost risk of enforcement, so that you do not have to pay for solicitors, valuations and court costs up front. Legal representation is always provided by a specialist solicitor.
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Gifts made during one’s lifetime often increase one’s entitlement
Some estates appear to have shrunk by the date of death because the house has long since been transferred to the children or because substantial sums have been paid to individual relatives. The compulsory portion supplement (§ 2325 BGB) provides protection against this. Gifts made by the deceased are fictitiously added to the estate for the purposes of calculation, and the resulting increased total gives rise to an additional claim to a compulsory portion.
Gifts made during the ten years prior to the opening of the succession are taken into account, albeit with decreasing weighting. A gift made in the year immediately preceding death counts in full; for each subsequent year prior to death, it counts for one-tenth less. There is one important exception to this phasing-out rule. If the deceased reserved a right of usufruct or a comprehensive right of residence in respect of the gifted property, the ten-year period often does not begin to run at all; the gift then remains relevant indefinitely. In the case of gifts between spouses, the period does not begin until the marriage is dissolved in any event. Gifted property is valued according to the lower-of-two-values principle: the lower of the two values—that at the time of the gift and that at the time of death—is taken into account. If the actual estate is insufficient to make up the shortfall, the donee may also be held liable under strict conditions (Section 2329 of the German Civil Code (BGB)).
However, the beneficiary must accept that any gifts they have received from the deceased will be taken into account. Anything they have received personally from the deceased is set off against their claim for a supplementary share (Section 2327 of the German Civil Code (BGB)). Such a gift, on the other hand, reduces the ordinary compulsory share only if the deceased expressly stipulated that it should be set off against the compulsory share at the time of making the gift (Section 2315 of the German Civil Code (BGB)).
Information from the heirs
Share, value of the estate, gifts – all these can only be quantified once the figures are on the table. However, many beneficiaries are only vaguely aware of the estate’s details, for example because the heirs are from a previous relationship of the deceased or because contact has been strained for years. The law compensates for this information gap by providing a right to information (Section 2314 of the German Civil Code (BGB)).
Upon request, the heirs must provide an inventory of the entire estate, which must also include any gifts made in recent years. Anyone who does not trust the privately drawn-up inventory may request that it be drawn up by a notary. The notarial inventory of the estate is regarded as significantly more reliable, as the notary carries out their own investigations, such as reviewing bank account transactions and consulting the land register. These costs are also borne by the estate. In practice, however, incomplete inventories are still a frequent source of dispute, particularly regarding bank accounts, life insurance policies and bank transfers made some time ago. Careful verification of the information provided is therefore central to any calculation of the statutory share.
Limitation periods and other time limits
The right to a compulsory share is generally subject to a limitation period of 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 entitled person became aware of the opening of the succession and of the disposition that adversely affects them. Anyone who becomes aware of both during the course of 2026 may therefore, as a rule, assert their claim by the end of 2029. If the claimant has no knowledge of either, the claim becomes time-barred no later than thirty years after the opening of the succession. The time limit is stricter for beneficiaries of gifts. The claim under Section 2329 of the German Civil Code (BGB) becomes time-barred exactly three years after the opening of the succession; knowledge of the matter is irrelevant in this case.
Ongoing negotiations with the heirs may suspend the limitation period (Section 203 of the German Civil Code (BGB)). One should not rely on this, however, as it is often disputed in retrospect whether an exchange of correspondence legally constitutes a negotiation. The time limit for renouncing an inheritance is considerably shorter, usually six weeks. For spouses considering switching to a matrimonial property regime, this is the truly critical deadline, as once it has expired, the route via Section 1371(3) of the German Civil Code (BGB) is no longer available.
The special case of the Berlin will
Up to now, the focus has been on the claim of the spouse who has been disinherited. With a ‘Berlin will’, the situation is reversed. The spouses appoint each other as sole heirs; the children are only to inherit after the second spouse’s death. This means that the children are disinherited upon the first death and can immediately claim their statutory share from the parent who has just lost their partner.
This requirement often catches the surviving spouse in a vulnerable position. Their assets are tied up in the home they live in, liquid funds are scarce, and the statutory share is immediately due as a monetary debt. Although the law provides for a deferral (Section 2331a of the German Civil Code (BGB)), this requires the existence of undue hardship – such as the imminent loss of the family home – and is granted only in exceptional cases. Mutually agreed solutions are usually more reliable, such as payment by instalments or a deferred due date secured by collateral. Many married couples prevent such conflicts at the planning stage by including a ‘compulsory portion penalty clause’, under which a child who claims the compulsory portion upon the first inheritance will also receive only the compulsory portion upon the second.
Common mistakes and areas of conflict
Certain mistakes recur with striking frequency in cases involving the compulsory share, and most of them can be avoided.
The most serious consequence is a hasty renunciation of the inheritance. Anyone who has been named as an heir and renounces the inheritance because the estate is heavily in debt or the dispute seems troublesome will, as a rule, also forfeit their statutory share. The exceptions – particularly those relating to a spouse under the community of accrued gains regime and those concerning limited or encumbered appointments of heirs (Section 2306 of the German Civil Code (BGB)) – are narrowly defined and should be examined before the declaration is made, not afterwards.
It is similarly costly to accept the heirs’ valuations without checking them. A valuation provided by the family, the previous purchase price or a tax valuation are no substitute for an expert valuation, and any discrepancy will affect the payout in full.
Gifts often go undetected because nobody asks about them. A request for information that omits gifts made during the donor’s lifetime means that the supplementary claim is left out of the calculation, and this is often the largest item, particularly in the case of transferred property.
There is also a widespread misconception that the compulsory share entitles the beneficiary to a share of the house or a right to continue living there. Neither is the case. Anyone who negotiates on this basis is failing to secure their own entitlement.
After all, waiting costs money. As time passes since the death, supporting documents disappear and memories fade, and eventually the limitation period expires. Three years may sound like a long time, but they pass quickly when the settlement of an estate is deadlocked.
The path to payment
The first step is to pursue the claim out of court. To do this, it is sufficient to send a letter to the heirs requesting information and setting out the basis of the claim. Many cases are settled in this way, particularly where relations are on good terms and the figures are undisputed. No financial backer is required for this.
Things get tricky when information is withheld, assets are undervalued, or the heirs simply refuse to pay. In such cases, the next step is to consult a specialist solicitor in inheritance law and, if necessary, take the matter to the civil court – often as a staged claim, which first enforces the provision of information and then the payment. With typical estate values, this incurs substantial costs for lawyers, the court and experts, and whoever brings the claim bears the risk of having to pay the other party’s costs should they lose the case. Many beneficiaries are put off by this risk, even if their claim is well-founded.
This is where litigation funding comes in. Erbfinanz can assume the cost risk associated with enforcement, from legal representation and expert reports right through to court proceedings. The fee consists of a share of the proceeds, which is agreed individually and transparently in advance and is payable only if the case is successful. If the case is lost, Erbfinanz bears the costs. Legal representation is always provided by a specialist solicitor; on request, we can put you in touch with specialist solicitors specialising in inheritance law with whom we collaborate.
When a quick payout is more important than the maximum amount
Sometimes reaching a swift settlement is more important than the final one per cent, for example when you need to reorganise your livelihood. In this case, you can sell your statutory share to Erbfinanz and receive payment promptly, without having to sort out the dispute with the heirs yourself. What happens to the claim afterwards is our concern.
We’ll discuss whether this approach is right for your situation during a no-obligation enquiry.
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Frequently Asked Questions
The divorce is already underway. Am I still entitled to a compulsory share?
This depends on the stage of the proceedings. If, at the time of death, the conditions for divorce were met and the deceased had applied for or consented to the divorce, the spouse’s right to inherit and, with it, the statutory share are forfeited (Section 1933 of the German Civil Code (BGB)). A mere separation is not sufficient for this, even if it has been ongoing for years. Once these rights have lapsed, only maintenance claims against the heirs may, at most, be considered.
We weren’t married. Am I entitled to a compulsory share of the estate?
No. Unmarried partners have no legal right to inherit and are therefore not entitled to a compulsory share of the estate, regardless of the length of the relationship. The only way to provide for an unmarried partner is through a will or an inheritance contract.
Do the same rules apply to registered civil partners as to married couples?
Yes. Registered civil partners are treated as spouses under inheritance and compulsory portion law (Section 10 of the Registered Civil Partnership Act (LPartG)). The information in this article applies to them accordingly, including the rules on matrimonial property regimes.
Can I claim the house or a right of residence instead of money?
There is no legal entitlement to this; the compulsory share is purely a monetary claim. However, spouses who lived in the deceased’s household are permitted to continue using the property following the so-called ‘thirtieth’ – that is, during the first thirty days after the opening of the succession (Section 1969 of the German Civil Code (BGB)). Long-term solutions, such as a right of residence in lieu of a cash payment, are only possible if the heirs and the beneficiary agree to them by mutual consent. This does happen in practice, for example to avoid the sale of the house.
The marriage contract includes a waiver of the statutory share. Is this binding?
A notarised waiver of the statutory share is, in principle, valid and extinguishes the claim (Section 2346 of the German Civil Code (BGB)). In cases of doubt, a specialist solicitor will assess whether a specific clause actually constitutes a waiver and whether it is valid in the individual case, for example in the case of highly one-sided marriage contracts. You are not obliged to accept such a clause without first having it examined.
Conclusion
The compulsory share protects the spurned spouse from total financial ruin, but requires care to be taken in following a clear sequence of steps. The first step is to determine the share, which is based on the matrimonial property regime and the other co-heirs; in the case of a disinherited spouse under the statutory matrimonial property regime, this amounts to the small compulsory share plus the specific equalisation of accrued gains. This is followed by the valuation of the estate, including any gifts made in recent years, and finally the assertion of the claim within the limitation period. Anyone who follows these steps and refuses to be fobbed off, whether regarding the provision of information or the valuation, will usually achieve a fair outcome. And where enforcement is at risk of failing due to the costs of proceedings, the risk can be transferred to a financier, ensuring that a legitimate claim actually results in a payout.
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.