When the probate court opens a will, all parties involved receive a copy of its contents together with what is known as the ‘minutes of opening’. In many families, these contain two terms that will determine the course of events for decades to come. The surviving parent is the ‘pre-heir’, whilst the children are the ‘subsequent heirs’. This means you have been appointed as an heir; you have not been passed over or disinherited. However, you cannot yet take possession of the inheritance. It remains with the surviving parent, often for a very long time, and nobody knows today what will be left of it by the time it is your turn.
This arrangement is often referred to as a ‘Hamburg will’. The term does not appear in the law, but the underlying structure does: namely, the provision for preliminary and reversionary heirs set out in Sections 2100 et seq. of the German Civil Code (BGB). And it grants reversionary heirs entitled to a compulsory share – first and foremost the children – a right of choice in a little-known provision. They may renounce the reversionary inheritance and instead demand their statutory share in cash immediately. Whether this is worthwhile depends on figures that can be calculated, and on a number of factors that one needs to be aware of. Let’s take them in turn.
Key points at a glance
- The Hamburg Will is a joint will drawn up by spouses under the so-called ‘separation arrangement’. The surviving partner becomes the preliminary heir, the children become the subsequent heirs, and the estate of the first to die remains a legally separate estate.
- Subsequent heirs are not disinherited. Consequently, they are not initially entitled to a compulsory share, unlike children under a ‘Berlin will’.
- Section 2306(2) of the German Civil Code (BGB) provides a way out. Successor heirs entitled to a compulsory share who renounce their inheritance may instead claim the compulsory share; this has applied to inheritances arising since 2010, regardless of the size of the intended share.
- Sub-heirs may renounce their inheritance as early as after the first death (Section 2142(1) of the German Civil Code (BGB)). According to the overwhelming majority of legal opinion, the often-cited six-week period does not begin to run for them until the sub-inheritance takes effect. The actual deadline is set by the limitation period for the compulsory share, which is normally three years.
- The compulsory share amounts to half of the statutory share of the inheritance; it is a purely monetary claim against the preliminary heir and is calculated on the basis of the value of the estate on the date of death. In the most common scenario – involving a spouse and two children – this amounts to one-eighth per child.
- Even a released preliminary heir may use up the estate, but may not give it away (Section 2113(2) of the German Civil Code (BGB)). Subsequent heirs may request an inventory of the estate’s assets at any time (Section 2121 BGB).
- Renunciation is final and applies only to the individual concerned. Often, the individual’s own children step in as substitute heirs, and some wills attach disadvantages to the claim to a compulsory share in the event of a second inheritance.
How to recognise a Hamburg will
The Hamburg and Berlin wills have the same objective. The surviving partner is to be provided for and retain control over the family home, whilst the children are only to inherit after the second death. The difference lies in the technical details, and these details fundamentally alter the children’s position.
Under a Berlin will, the surviving spouse becomes the sole heir. Both estates are merged into a single estate; the children are disinherited for the first succession and are appointed only as final heirs for the second. This disinheritance gives rise to their claim to a compulsory share, which they may assert without further explanation.
Under the Hamburg will, the surviving spouse becomes merely a preliminary heir. The estate of the first to die does not merge with the surviving spouse’s assets, but remains a separate estate, which the surviving spouse administers and which is to pass to the children upon the death of the surviving spouse. The children are therefore not excluded, but receive their share at a later date, and it is precisely this that initially prevents them from receiving their statutory share.
| Berlin will | Hamburg will | |
|---|---|---|
| Position of the survivor | Full inheritance | Pre-heir |
| Position of the children | disinherited in the first succession; final heirs of the survivor | Successors to the first to die |
| Assets after the first death | merges into a single mass | is kept separate as a special fund |
| Children’s statutory share in the first succession | is certainly the case | only after renouncing the reversionary inheritance |
Do not rely on headings. Neither of these terms is a legal concept; they are used differently depending on the region and are occasionally even used interchangeably. The wording alone is decisive. If the will contains the terms ‘pre-heir’ and ‘post-heir’, the rules on this page apply. If the wording is unclear, the law presumes, in cases of doubt, the ‘unified solution’ set out in the Berlin Will (Section 2269(1) of the German Civil Code (BGB)), i.e. disinheritance with an immediate statutory share. This question of interpretation alone can determine the outcome of a significant sum of money.
What the preliminary heir is allowed to do, and what rights you already have
Under the law, the preliminary heir is regarded as a temporary administrator. He is to make use of the estate, but must preserve it in its current state for the subsequent heirs, and is therefore subject to a number of restrictions (Sections 2112 et seq. of the German Civil Code (BGB)). Accordingly, they are not permitted to dispose of land at will; they must invest money in a particularly secure manner; and they would be liable to pay compensation for any use of the estate for their own benefit.
In practice, however, this principle is often not followed. Most joint wills, particularly those drawn up by a notary, exempt the surviving partner from these restrictions, insofar as the law permits (Section 2136 of the German Civil Code (BGB)). If, however, the will does not provide for such an exemption, the statutory restrictions remain in force. An exempted preliminary heir may sell the house, close bank accounts, reallocate assets and use the estate to cover their own living expenses. Whether anything remains in the end depends less on the law than on health, care costs and lifestyle.
Even the most generous will cannot override these two safeguards. The preliminary heir may not give away any assets from the estate. Such gratuitous dispositions are ineffective vis-à-vis the reversionary heirs as soon as the reversionary inheritance takes effect, with the exception of customary occasional gifts and gifts made out of moral obligation (Section 2113(2) of the German Civil Code (BGB)). In the case of immovable property, the reversionary succession is also entered in the land register as a ‘reversionary heir’s note’. Where the preliminary heir is not exempt, this makes private sales practically impossible, as no buyer can later claim that they were unaware of the reversionary succession. In the case of an exempt preliminary heir, this at least makes it clear to any purchaser what they are getting into.
And what about your own position? You are not a co-heir alongside the preliminary heir; you have no say in the administration of the estate; and, as a general rule, the law does not provide for regular reports on account balances. However, one right is often overlooked. Under Section 2121 of the German Civil Code (BGB), you may require the preliminary heir to provide a list of all items forming part of the estate – drawn up officially or by a notary, if you so wish – with the costs borne by the estate. The will cannot exempt the preliminary heir from this obligation. For the decision at hand, this inventory is often the first tangible point of reference, as it shows what assets are actually available.
None of this will help you combat the slow decline in value. Maintenance costs, a move into a care home, neglected upkeep or simply the preliminary heir’s lifestyle reduce the value year on year – in the case of a preliminary heir who is exempt from inheritance tax, this is legally sound and beyond your control. Anyone who waits twenty years to inherit their parents’ home often ends up with a property in need of renovation and largely depleted bank accounts. In case of doubt, the event triggering the reversionary inheritance is the death of the preliminary heir (Section 2106(1) of the German Civil Code (BGB)), though the will may also link it to an earlier event, frequently remarriage.
Why the compulsory share applies only in the event of a renunciation of inheritance
The compulsory share protects the closest family members from being completely excluded from the inheritance. It therefore presupposes that someone has been excluded from the line of succession by will or inheritance contract (Section 2303 of the German Civil Code (BGB)). This is precisely what reversionary heirs are not. They are appointed, but only for a later date. From a legal perspective, there is initially nothing to be equalised; the statutory share is suspended for as long as the status of reversionary heir remains in force.
The key lies in Section 2306 of the German Civil Code (BGB). According to this provision, appointment as a reversionary heir is deemed to be a restriction on the appointment of an heir (Section 2306(2) of the German Civil Code), and an heir entitled to a compulsory share who is subject to such a restriction may renounce the bequest and claim the compulsory share instead. Since 1 January 2010, the size of the intended share has no longer been a factor in cases of inheritance. Even someone who, on paper, is to receive half the estate may renounce the inheritance and opt for the smaller, but immediately available, monetary claim.
You do not have to wait for this. The reversionary heir may renounce the inheritance as soon as the first death has occurred (Section 2142(1) of the German Civil Code (BGB)). The compulsory share is then calculated on the basis of the estate of the parent who died first, valued as at the date of death (Section 2311 of the German Civil Code (BGB)), and is payable by that parent’s heirs – in this case, the surviving parent as the preliminary heir. It arises as soon as the first inheritance takes effect (Section 2317 of the German Civil Code (BGB)) and is, in principle, due immediately. How the preliminary heir raises the money – whether from savings, by taking out a loan or through a sale – is, legally speaking, entirely up to them. Only in very limited exceptional cases may they request a deferral, for example if immediate payment would force them to give up the family home in which they themselves reside (Section 2331a of the German Civil Code (BGB)).
There is one thing the law excludes, and this point is the crux of the entire decision. A compulsory share and a reversionary inheritance cannot coexist. Anyone who wishes to claim the monetary entitlement forfeits any prospect of inheriting the entire estate once and for all.
How much time you really have left
Hardly any other aspect is misrepresented as often in this context as the time limit. The well-known rule, according to which an inheritance must be renounced within six weeks (Section 1944 of the German Civil Code (BGB)), is linked to the date on which the inheritance becomes due. Residual heirs are in a different position. The inheritance only passes to them upon the occurrence of the residual inheritance event (Section 2139 of the German Civil Code (BGB)), and according to the overwhelming majority of legal opinion, their time limit for renouncing the inheritance therefore begins at the earliest at that point. The six-week period from the opening of the will – which some advice guides use to create a sense of urgency – does not preclude the reversionary heir’s right to choose.
That is by no means cause for relief, however, as the real clock is ticking elsewhere. The right to a compulsory share arises upon the first opening of the succession, even if you can only assert it after renouncing the inheritance, and it is generally subject to a limitation period of three years, calculated from the end of the year in which you became aware of the opening of the succession and of your appointment as a reversionary heir (Sections 195, 199 of the German Civil Code (BGB)). You should not rely on the fact that the limitation period only begins to run upon renunciation. According to the prevailing view, the limitation period runs independently of this, as otherwise its start could be postponed at will. Anyone who postpones the decision until the reversionary inheritance therefore risks finding themselves years later with a claim that has become time-barred. In practice, the choice must therefore be made within the first three years – or, better still, considerably earlier.
The declaration itself is subject to the same strict formal requirements as any renunciation of an inheritance. It must be made before the probate court, either recorded in the court’s minutes or with a notarised signature (Section 1945 of the German Civil Code (BGB)). A letter to the preliminary heir or to the court is not sufficient. Furthermore, the declaration is final. It can only be challenged in very limited exceptional cases; mere change of heart does not constitute grounds for challenge. As the time-limit issues in this scenario are so delicate, they should be referred to a specialist solicitor in inheritance law at an early stage in each specific case.
What your decision means for the rest of the family
The renunciation applies only to you. Your siblings retain their status as reversionary heirs and may decide for themselves.
What happens to your share that becomes vacant is determined primarily by your will. Many wills name substitute reversionary heirs, and even in the absence of an explicit provision, the law presumes, in cases of doubt where children are named as beneficiaries, that their own descendants should take their place (Section 2069 of the German Civil Code (BGB)). Your renunciation of the inheritance may therefore simply pass the reversionary inheritance on to the next generation – to your children. If there are no such substitute reversionary heirs, in cases of doubt where there are several reversionary heirs, the share that becomes available accrues to the remaining heirs (Section 2094 of the German Civil Code (BGB)); in the case of two children, this would therefore accrue to the sibling. Only when no one succeeds to the inheritance and no share accrues to anyone else does the inheritance finally remain with the preliminary heir (Section 2142(2) of the German Civil Code (BGB)), who in this respect becomes the free heir. Anyone wishing to release the entire family from this obligation must therefore also bear in mind the succeeding generation, who would then have to renounce their inheritance in turn. None of this affects your own statutory share.
We now turn our attention to the second inheritance. In most of these wills, the children are also named as heirs to the surviving parent’s own estate. They do not, in and of itself, lose this status by renouncing the reversionary inheritance. However, some joint wills contain clauses stipulating that a child who claims their statutory share following the first death shall also receive only the statutory share in the second inheritance. Such penalty clauses relating to the statutory share originate from the context of the ‘Berlin will’, but also occur here; whether a specific clause covers the renunciation followed by a claim to the statutory share is determined by its wording. You should therefore read the will in full before making your declaration, not just the sections relating to the first inheritance. An overlooked clause can double the cost of your decision.
The statutory share in figures
The share is easily calculated. The compulsory portion amounts to half of the statutory share of the inheritance – that is, the share to which you would have been entitled in the absence of a will. In the most common scenario, the parents were married under the statutory matrimonial property regime of community of accrued gains. Without a will, the surviving spouse would then inherit half: a quarter as their statutory share and a further quarter as a lump-sum adjustment for the accrued gains, whilst the children would share the other half. If there are two children, each child’s statutory share is therefore one quarter and their compulsory share one eighth. If there is only one child, it is one quarter; under other matrimonial property regimes, the shares change.
A calculation example. The father dies, leaving behind his wife and two children. The estate consists of a house worth 600,000 euros and bank accounts totalling 200,000 euros; there are no debts. Each child’s statutory share amounts to one-eighth of 800,000 euros, i.e. 100,000 euros in cash. Following a valid renunciation of inheritance, a child may claim this amount from the preliminary heir without having to wait for the second death.
The calculation stands or falls on the valuation, and this is where the toughest battles are fought in practice. The decisive factor is the market value on the date of death – that is, the price that could be realised on the market – not the earlier purchase price, nor any tax value. Once you have renounced your inheritance, you are entitled to the rights to information under the law on the compulsory share (Section 2314 of the German Civil Code (BGB)). You may request a full inventory of the estate from the preliminary heir; if you wish, this may take the form of a notarised inventory of the estate, for which the notary will carry out the valuation themselves and, for example, obtain bank statements. You may also demand that the value of the property be determined by an expert, with the costs borne by the estate. If serious doubts remain as to the completeness of the inventory, the preliminary heir may be required to certify it by affidavit. A pair of figures illustrates just how much this can amount to. If the preliminary heir values the house at 480,000 euros and the expert’s report puts the value at 620,000 euros, each child’s share – based on one-eighth – increases by 17,500 euros.
Often, the claim is further supplemented by a second source. If the deceased parent gifted assets during their lifetime, the value of these gifts is partially added to the estate for the purposes of the calculation; this is known as the ‘supplement to the compulsory share’ (Section 2325 of the German Civil Code (BGB)). Gifts made during the ten years immediately preceding the opening of the succession are taken into account. A gift made in the last year counts in full; for each additional year prior to that, the value is reduced by one-tenth. Two exceptions extend further back in time and apply precisely to this family situation. Gifts between spouses count practically without limit, provided the marriage lasted until the death, as the ten-year period only begins upon the end of the marriage. Furthermore, if the deceased reserved the right of usufruct or a comprehensive right of residence in respect of a gifted property, the period generally does not commence at all. Even transfers made decades ago can still increase the compulsory share in such cases.
To turn it down or wait – that’s what matters
Essentially, by opting out, you are exchanging a larger but uncertain and distant prospect for a smaller, yet quantifiable and imminent financial entitlement. It is not possible to say in general terms which option is better. However, the key considerations can be identified.
Experience suggests that exclusion is warranted when several of the following factors are present:
- The preliminary heir is exempt from the statutory restrictions and is permitted to use up the estate’s assets. The freer his position, the less worthwhile the wait.
- The succession by the reversionary heir is a long way off, for example because the reversionary heir is still young. If the reversionary heir is a significantly younger second spouse of the deceased, the waiting period may stretch over decades.
- The estate consists mainly of a property with a clear maintenance backlog, the condition of which is likely to deteriorate over the years.
- Relations with the preliminary heir are often strained, particularly in blended families. The subsequent inheritance legally binds both parties to one another, often for a very long time.
- There were substantial gifts made during the person’s lifetime which increase the statutory share by the amount of the top-up.
- You need financial certainty or money at a foreseeable point in time, for example to buy your own home or to fund your children’s education.
The counterargument in favour of waiting is the mirror image of the above. A preliminary heir who has not been released from their obligations is bound by the statutory restrictions; the estate is then comparatively well secured, and the full share is worth considerably more than half the statutory share of the inheritance. The balance of considerations is similar if the relationship is intact and the preliminary heir is demonstrably managing the estate in everyone’s best interests, if the estate consists mainly of a well-maintained, debt-free property, or if the will contains a penalty clause that penalises a claim to the compulsory portion upon the second death.
Tax law also has a say in the matter. As a reversionary heir, you are, in principle, taxed on your inheritance upon the death of the reversionary heir as if everything had come from the surviving parent, and even if you submit an application basing the reversionary inheritance on the relationship to the first parent to die, the personal allowance of 400,000 euros is granted only once in total (Section 6(2) of the Inheritance Tax Act). The claimed compulsory share, on the other hand, is treated as an acquisition from the parent who died first and utilises that parent’s tax-free allowance – which would otherwise often lapse – whilst, in the case of a preliminary heir, it is deductible as an estate liability (Section 10(5)(2) of the Inheritance Tax Act). In the case of larger estates, renouncing the inheritance can therefore significantly reduce the family’s tax burden across both inheritances. If the total value of the estate falls below the tax-free allowances, this point is irrelevant.
Between these two extremes, there is a third option that is rarely mentioned. The preliminary heir and the subsequent heir can reach an agreement, for example, whereby the subsequent heir waives their rights in return for a settlement, or transfers them to the preliminary heir. This requires a willingness to engage in dialogue on both sides and, due to formal requirements and tax implications, should be handled with the assistance of a notary and a solicitor; however, it spares the family the harsh ‘either-or’ dilemma imposed by the law.
Given the irrevocable nature of the renunciation and the time-limit issues described, a specialist solicitor in inheritance law will routinely review the entire arrangement in such circumstances before the declaration is made. What you can do yourself in advance is set out above. Read the will in full, request the inventory in accordance with Section 2121 of the German Civil Code (BGB) and estimate your own share of the estate.
Common mistakes and the row over money
The most costly mistakes tend to follow the same patterns time and time again.
Firstly, there is the informal declaration. A letter to the mother stating that one is waiving the right to inherit as a reversionary heir and would prefer to receive the statutory share is legally meaningless. Without a declaration to the probate court in the prescribed form, the status as a reversionary heir remains in force, the statutory share remains frozen, and the limitation period continues to run regardless.
The opposite of this is renouncing an inheritance in the heat of the moment, shortly after the funeral and without considering the value of the estate, penalty clauses or one’s own children as potential substitute heirs. Such a renunciation cannot be revoked. Anyone who only does the maths after making the declaration is too late.
The third mistake is to leave matters to rest after the rejection. The statement merely opens the door. The claim must be quantified and asserted, and the three-year limitation period applies to this. Even the best right to information is of no use unless someone exercises it.
That leaves the matter of dealing with the preliminary heir themselves. Experience shows that this tends to centre on two points: the completeness of the information provided and the value of the property. Both can be addressed using the resources outlined in the section on figures, namely the notarial inventory of the estate, the statutory declaration and the expert’s report. If the preliminary heir fails to pay despite the situation being clear, the only recourse is to bring a claim before the civil court; in practice, this usually takes the form of a staged claim, which first demands disclosure and then payment. Such proceedings often take between one and three years, and the advance payments for court fees, solicitors’ fees and expert reports can quickly amount to a five-figure sum in the case of six-figure claims – a sum which the entitled party must initially cover themselves. Quite a few therefore accept a meagre settlement, not because their position is weak, but because they lack the financial resources to see it through.
When the payout is delayed
Normally, the compulsory share is claimed from and paid out by the preliminary heir in the usual way. Things become difficult if the information provided is incomplete, the property is valued too low, or the matter drags on for years. 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. Legal representation is always provided by a specialist solicitor.
What is the best course of action now?
In two minutes, you’ll know where you stand. All it takes is five answers – no contact details or supporting documents required – and the results will appear on screen straight away.
This is what your analysis shows
Your no-obligation enquiry is free of charge, discreet and takes just a few minutes to complete.
Frequently Asked Questions
Does all this also apply to a ‘Berlin will’?
No. In that scenario, the children are disinherited in the first stage of succession and are entitled to their statutory share without having to renounce the inheritance. The restriction and right of choice under Section 2306(2) of the German Civil Code (BGB) apply to the ‘separation’ arrangement involving prior and subsequent inheritance. Which scenario applies is determined by the wording of the will.
Can I remain a reversionary heir and still receive my statutory share?
No, the law presents you with an either/or situation. In this scenario, the statutory share requires that the reversionary inheritance be effectively renounced.
What happens to the residual inheritance if I renounce it?
Firstly, substitute reversionary heirs take their place, often the testator’s own children, as the law presumes this to be the case where descendants have been appointed in cases of doubt (Section 2069 of the German Civil Code (BGB)). If there are none, and where there are several reversionary heirs, the share passes to the remaining heirs in cases of doubt (Section 2094 of the German Civil Code (BGB)). Only if neither of these options applies does the inheritance pass to the preliminary heir (Section 2142(2) of the German Civil Code (BGB)). Your statutory share remains unaffected in all cases.
What happens if I die before the preliminary heir?
The status of reversionary heir is, as a rule, inheritable and passes to your own heirs, unless the will provides otherwise (Section 2108(2) of the German Civil Code (BGB)). However, interpretation often suggests that your descendants should take the place of the reversionary heir instead.
Does the preliminary heir have to tell me what is included in the estate?
As a reversionary heir, you may at any time request an inventory of the estate’s assets, even from an exempt preliminary heir, and the costs are borne by the estate (Section 2121 of the German Civil Code (BGB)). By contrast, there is generally no requirement to provide regular updates on account balances. You are only entitled to the comprehensive right to information under the right to a compulsory share (§ 2314 BGB) after you have renounced the inheritance.
Is the preliminary heir allowed to sell or give away the house?
A released preliminary heir is entitled to sell the property and may even spend the proceeds. However, they are not permitted to make gifts. Disposals of estate assets made without consideration are ineffective vis-à-vis the reversionary heirs in the event of reversion, with the sole exception of small tokens of courtesy (Section 2113(2) of the German Civil Code (BGB)).
When a swift conclusion is more important than that final one per cent
Sometimes, the desire to avoid a dispute with one’s own parent for years on end outweighs even the last euro. In this case, you can sell your claim to a compulsory share to Erbfinanz and receive prompt payment without having to deal with the dispute 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.
At the start of this page were two words from an opening statement. At the end is a decision with clear parameters. Successors who wait are relying on the preservation of an estate that someone else manages and, in most cases, is permitted to spend. Heirs who renounce their inheritance take the smaller share and turn an uncertain prospect into a quantifiable claim. Neither of these responses is wrong in itself. The only mistake is to leave the question unresolved until the limitation period answers it.
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.