In many estates, the actual assets are not held in a bank account but are tied up in a house or a flat. It is precisely this that regularly leads to disputes over the statutory share. Those who have been disinherited often hope to receive a share of the property, only to discover that they are actually entitled to something quite different.
It is not only those expressly excluded by a will who are disinherited. Anyone who is simply not named in the will, even though they would have become a statutory heir as a child or spouse, is also disinherited. If the parents bequeath the house solely to one sibling, the other children are excluded from the line of succession and are entitled to their statutory share. Even those who have been included in the will but receive less than their statutory share may claim the difference. What else exclusion from the line of succession entails is explained in the article on the subject, What rights remain following disinheritance?.
The compulsory share remains a financial entitlement, even if there is only a house
This is the most important point and, at the same time, the one that is most frequently misunderstood. The compulsory share is not a share of the estate, but a claim for money directed against the heirs (Section 2303 of the German Civil Code (BGB)). It amounts to half the value of the statutory share of the inheritance.
This has a clear implication for a property. Anyone who is only entitled to a compulsory share does not become a co-owner of the house, is not listed in the land register, is not permitted to move in, and has no say in whether the house is sold, let or retained. What they are entitled to is a sum of money calculated on the basis of the value of the property and the remainder of the estate. The property itself belongs to the heirs.
At first glance, this distinction may seem harsh, but there is a simple reason for it. Close relatives are to receive a share of the value of the estate without being able to interfere in the heir’s decisions regarding individual items. The statutory share therefore always relates to money and never to physical objects.
How a property is valued for the statutory share
As the compulsory share is calculated on the basis of the value of the estate, the valuation of the property is the key issue. The composition and value of the estate at the time of death are decisive (Section 2311 of the German Civil Code (BGB)). In the case of a property, this means the market value on the date of death, i.e. the price that could be realised if it were sold on the open market. The previous purchase price, the assessed value stated in the tax assessment notice or any value desired by the heirs are not relevant.
To enable the claim to be quantified at all, the law grants the entitled parties a right to information from the heirs (Section 2314 of the German Civil Code (BGB)). The heirs must provide a complete inventory of the estate. Upon request, this inventory may be drawn up by a notary, which is generally regarded as more reliable in practice. In the case of immovable property, a valuation by an expert may also be requested. The costs of providing the information and the expert report are borne by the estate and not by the entitled person personally.
The valuation is also influenced by any encumbrances on the property. If the house is still subject to a loan and a mortgage is registered in the land register, the outstanding debt reduces the value of the estate and, consequently, the statutory share. A right of usufruct or a right of residence established prior to the testator’s death has a similar effect. If, for example, the surviving spouse is entitled to continue living in the house for life by virtue of such a right, the property is worth less to the heirs, and this reduced value is reflected in the statutory share. The situation is different if the testator only grants the right of residence as a bequest in their will. Bequests do not reduce the value of the estate for the purposes of calculating the compulsory share, as otherwise the compulsory share could be undermined by provisions in the will. The extent to which such a burden affects the estate in individual cases is often itself a matter of dispute.
Once the value has been determined, the specific amount is calculated using the statutory share ratio. The section explains how this ratio is derived and what ultimately remains of the estate’s value. Guide to calculating the statutory share Step by step. Anyone who can make a rough estimate of the market value will find that, via the Legal share calculator a rough estimate in a few minutes.
What happens if the money is tied up in the house and the heir is unable to pay?
A common problem has nothing to do with ill will. The heir has inherited the house but has no money in their account to pay out the compulsory share. The assets are tied up, yet the compulsory share is still a monetary claim. The claim arises upon the opening of the succession and is, in principle, due immediately (Section 2317 of the German Civil Code (BGB)).
For the heir, this means that they must raise the money themselves. They can take out a mortgage on the property, borrow money, let the house, or, if necessary, sell it. The sale cannot be enforced from outside, as someone who is only entitled to the compulsory share is not the owner. They can only assert their financial claim, and how the heir settles it is entirely up to the heir.
In cases of particular hardship, the law provides for the possibility of a deferral (Section 2331a of the German Civil Code (BGB)). If immediate payment would cause the heir undue hardship – for example, because they would have to give up the family home in which they live – they may request that the statutory share be paid at a later date or in instalments. The interests of the entitled party must be given due consideration in this regard. The court decides on the deferral; where the claim is undisputed, the probate court makes the decision. The conditions are strict and depend heavily on the individual case. As a general rule, one should not expect a deferral.
Gifted property and the right to supplementary benefits
In the case of property in particular, it is often the case that the house has already been transferred during the testator’s lifetime, usually to a child. For the remaining beneficiaries, it then appears as though there is hardly anything left from which a compulsory share could be calculated. For such cases, there is the claim for a supplementary compulsory share (Section 2325 of the German Civil Code (BGB)). Put simply, the gift is added back to the estate for the purposes of the calculation, as if the testator had not made it. The last ten years prior to the opening of the succession are taken into account, and the longer ago the transfer took place, the less weight it carries. The article on this subject explains in detail how this reduction is calculated, how gifts increase the statutory share.
When it comes to property, there is an important special feature in this regard that surprises many people. The ten-year period only begins to run once the donor has actually parted with the property in economic terms. If, at the time of the transfer, the donor has reserved a right of usufruct or a comprehensive right of residence over the entire property and continues to use the house in practice as before, case law holds that the period does not begin to run. The gift then remains fully taken into account even after many years. So anyone who thinks there is nothing left to be gained after ten years should not overlook this point. The article on a house transferred during the owner’s lifetime.
If the estate is insufficient to cover the shortfall, a claim may also be made against the person who received the property as a gift, subject to stricter conditions (Section 2329 of the German Civil Code (BGB)). A separate limitation period applies in relation to the recipient of the gift. This claim becomes time-barred exactly three years to the day after the opening of the succession, irrespective of whether the entitled party was aware of the gift.
Common points of conflict and mistakes
The most common dispute centres on the value. The heirs value the property too low, whilst the beneficiary considers the valuation to be too low. As every percentage point of the value counts as cash when it comes to the compulsory share, it is worth insisting on a proper valuation, if necessary through a notarial inventory and an expert’s report.
A second issue is the delay. Some heirs allow the payout to come to nothing by failing to provide information or by delaying the valuation. A structured approach can help to counter this, one that requires information, valuation and payment to be carried out in sequence and within clear deadlines, as stipulated by the Step reminder provides for.
Meanwhile, the clock is ticking. The claim to a compulsory share is generally subject to a limitation period of three years, calculated from the end of the year in which the beneficiary became aware of the death and of their disinheritance. Anyone who allows negotiations over the value of the house to drag on for a long time should therefore Deadlines and hurdles keep in mind the points that need to be taken into account when enforcing the rules.
Finally, the right to a supplementary inheritance is often overlooked in the case of property that has been gifted. Anyone who believes that the deceased gave away everything during their lifetime and that nothing remains for them should have it checked to see whether such a gift still counts towards the estate.
Frequently Asked Questions
Am I entitled to a share of the house if I am entitled to a compulsory share?
No. The compulsory share is a financial claim against the heirs and not a share in the property. It does not make you a co-owner, nor are you entered in the land register. However, the amount is based on the value of the estate, to which the property usually contributes the largest share.
How is the value of the house determined?
The market value on the date of death – that is, the price that could be obtained on the market – is the decisive factor. You may request information about the estate and insist that the value of the property be determined by an expert. The costs of this are borne by the estate.
The house was sold following the inheritance. Does the sale price count now?
The value on the date of death remains the decisive factor. A sale price realised on the open market around that time is generally a strong indicator of this. However, it is not mandatory. If there are indications that the property was sold below market value – for example, within the family – a valuation may still be requested even after the sale. Conversely, any subsequent increases in value are not taken into account.
Does my mother’s right of residence reduce my statutory share?
Usually, yes, if the right already existed before the death. A right of residence or a usufruct reduces the value of the property for the heirs, and this reduced value forms the basis for the compulsory share. The extent of the reduction depends on the scope of the right and the statistical life expectancy of the beneficiary, and is often a matter of dispute in itself. If, on the other hand, the testator has only provided for the right of residence as a bequest in their will, it does not reduce the statutory share.
Can I demand that the house be sold so that I can get my money back?
You cannot force a sale because you are not the owner. You can only assert your claim for payment. It is up to the heir to decide whether to sell the house, take out a mortgage against it or raise the money in some other way.
The heir says he doesn’t have the money to pay me. What then?
The statutory share remains a monetary claim, even if the assets are tied up in the house. In principle, the heir must raise the money themselves. Only in genuine cases of hardship can they obtain a deferral, i.e. a later payment or payment in instalments. This is decided by a court. This is the exception and depends heavily on the individual case.
The property was given away years ago. Do I still stand to gain anything from it?
Perhaps. Under the supplementary claim, gifts made in the last ten years are taken into account on a pro rata basis. If, at the time of the transfer, the testator reserved a right of usufruct or a right of residence over the entire property, this period may not even begin to run, meaning that the gift will still count in full even at a later date. Whether this applies depends on the circumstances of each individual case.
How long do I have to claim my statutory share?
The claim is generally subject to a limitation period of three years. The period begins at the end of the year in which you became aware of the death and of the fact that you had been passed over. Irrespective of when you became aware of this, the right to claim expires no later than thirty years after the opening of the succession. In the case of a claim against the beneficiary, a separate three-year time limit, calculated to the day, also applies, which is why it is worth examining the matter at an early stage.
If there’s a problem with the payout
Normally, the statutory share is claimed and paid out by the heirs in the usual way. No special assistance is required for this. Things only become difficult when a property is involved and the heirs make it difficult to receive the payment. They undervalue the house, refuse to provide proper information or claim that there is no money available, and drag the matter out for years.
This is exactly where Erbfinanz can help. If a claim needs to be pursued, we can bear the cost risk, so that you do not have to pay for a solicitor, expert reports or court costs up front. Legal representation is always provided by a specialist solicitor in inheritance law, whom we can arrange for you on request.
Anyone who prioritises a secure and swift settlement over the highest possible amount can Selling a claim to a compulsory share and is paid out promptly, without having to resolve the dispute over the value of the property itself. In return, the purchase price remains below the amount that might ultimately be awarded following a successful claim. Anyone who has the time and remains in dialogue with the heirs is therefore usually better off asserting the claim themselves.
We’ll discuss in advance which approach is best suited to your situation. Your non-binding enquiry It’s free, discreet and takes just a few minutes.
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.