The house has long since been transferred to another’s name, the investment portfolio has been wound up, and there is hardly anything left in the bank accounts. Anyone who has been disinherited and claims their statutory share following the death therefore often faces a second disappointment. Of the assets that had been in place for decades, only a fraction appears in the estate because the deceased gave away the majority of it during their lifetime. A statutory share calculated from this reduced estate then seems like a token payment.
It is precisely for this situation that the law provides for the claim to a supplementary compulsory portion. This means that gifts made in the last ten years – and, in certain important exceptional cases, even those made much earlier – are treated for the purposes of the calculation as if they were still part of the estate. In this way, a meagre statutory share can be transformed into a considerably higher monetary claim. This article explains who is entitled to the claim, which gifts count, how the ten-year period and its gradual reduction work, and what is important when it comes to enforcing the claim.
The effect of the claim for a supplementary compulsory share
The compulsory share guarantees the closest relatives a minimum share of the estate. Any person – whether a child, a spouse or, if there are no children, a parent – who has been excluded from the succession by a will or an inheritance contract may claim money from the heirs, specifically half the value of their statutory share of the estate (Section 2303 of the German Civil Code (BGB)). This is purely a monetary claim. It does not entail any claim to specific items, to the family home or to a say in the distribution of the estate.
This arrangement has a loophole. The statutory share is calculated on the basis of what remains on the date of death. Anyone who gifts away their assets in good time could therefore effectively erode the statutory share without a single word to that effect appearing in the will. This is precisely what Section 2325 of the German Civil Code (BGB) prevents. Gifts made during the testator’s lifetime are added back to the estate for the purposes of calculation. Legal experts refer to this as the ‘notional estate’. The statutory share is recalculated on the basis of this increased value, and the difference between this and the ordinary statutory share constitutes the claim for a supplementary payment.
An example illustrates the effect. A widowed mother names her sister as her sole heir, thereby disinheriting her only son. On the day of her death, she leaves an estate worth 200,000 euros. Just over a year before her death, she had already gifted 200,000 euros to her sister. Without the adjustment, the son would be entitled to half of the estate, i.e. 100,000 euros. With the adjustment, the gift is taken into account at 90 per cent, as it was made in the second year prior to the opening of the succession. The notional estate thus amounts to 380,000 euros, and the son’s claim rises to 190,000 euros. The gift has therefore almost doubled his entitlement.
It is important to understand the legal nature of this claim. The supplementary claim is also a monetary claim. As a rule, the gifted house does not have to be returned, and the beneficiary does not become a co-owner of it. The sole purpose is to recover the value of the gift.
Who is entitled to request the amendment
The group of beneficiaries is the same as for the compulsory share. This includes the descendants – that is, children and, in their place, grandchildren – as well as the spouse or registered partner and the parents of the deceased; the latter are only included if there are no descendants. Siblings, nieces and nephews are never entitled to a compulsory share and therefore have no claim to a supplementary payment.
It is a common misconception that only those who have been completely disinherited are entitled to claim the supplementary payment. In fact, it is also available to persons who have inherited or received a bequest (Section 2326 of the German Civil Code (BGB)). However, anyone who has received a bequest must have the value of what they have received set off against their claim, to the extent that it exceeds half of their statutory share of the estate. In practice, this means that even an heir may claim the top-up if substantial gifts have depleted the estate and the value of their share of the inheritance falls short of what they would be entitled to after the top-up has been added.
The date of the gift is not relevant to entitlement. The Federal Court of Justice has ruled that it is sufficient for the entitlement to a compulsory share to exist at the time of the opening of the succession. A gift made before the child’s birth is therefore taken into account, and according to the now overwhelmingly prevailing view, the same applies to gifts made before marriage, provided the other conditions are met.
There is no entitlement if the statutory share has been validly forfeited, if the beneficiary is deemed unworthy of inheritance, or if the beneficiary has waived their statutory share by a notarial deed. Forfeiture is possible only in a few cases, which are exhaustively set out in law, and remains a rare exception in practice.
Which payments are included
Included are gifts – that is, transfers which have reduced the testator’s estate and for which no equivalent consideration was provided. Typical examples include the transfer of property, large sums of money, securities and shares in companies. Hidden forms also count. If a house is sold to a child at a price well below its value, this constitutes a mixed gift, and the part given free of charge is included in the calculation. Agreed consideration, such as care obligations or payments, reduces the value to be assessed accordingly.
A special case of practical importance is life insurance where a beneficiary has been named. According to the case law of the Federal Court of Justice, what counts here is neither the sum insured nor the total of the premiums paid, but, as a rule, the surrender value of the policy on the date of death. Only a demonstrably higher market value of the policy may take its place in individual cases.
So-called obligatory and customary gifts (Section 2330 of the German Civil Code (BGB)) are excluded. Usual gifts given on birthdays, at Christmas or at weddings do not trigger a supplementary payment. The criterion is based on the deceased’s financial circumstances. Those who were wealthy may make more generous occasional gifts without this giving rise to any claims.
By contrast, rent-free accommodation is often overestimated. If a relative has been allowed to live rent-free in a flat belonging to the deceased for many years, the prevailing view of the courts is that this does not generally constitute a gift for the purposes of the compulsory portion supplement, as the substance of the testator’s estate was not thereby diminished. Such benefits do not usually increase the entitlement, even if they have accumulated to a considerable amount over the years.
The ten-year period and the phase-out
Gifts made during the ten years immediately preceding the opening of the succession are taken into account. This is not based on an ‘all-or-nothing’ principle, but rather on a sliding scale. The longer ago the gift was made, the smaller the proportion that is taken into account in the calculation (Section 2325(3) of the German Civil Code (BGB)). Specifically, a gift is taken into account
- at 100 per cent, if it took place in the first year prior to the death,
- at 90 per cent in the second year,
- at 80 per cent in the third year,
- at 70 per cent in the fourth year,
- at 60 per cent in the fifth year,
- at 50 per cent in the sixth year,
- at 40 per cent in the seventh year,
- at 30 per cent in the eighth year,
- at 20 per cent in the ninth year,
- at 10 per cent in the tenth year,
- at 0 per cent, if more than ten years have passed since the gift was made.
So, if a gift of 100,000 euros was made a good four years ago, 60,000 euros is included in the calculation. After a full ten years, it is no longer taken into account.
The crucial factor is when the time limit begins to run. The law is based on the transfer of the gift, i.e. the moment when the gift is actually removed from the donor’s assets. In the case of money, this is when the funds are credited to the recipient’s account. In the case of property, the time limit only begins when ownership is transferred in the land register, not at the appointment with the solicitor. There may be months between these two points, which, in borderline cases, can determine the entire tax bracket.
When the ten-year period does not even begin
Case law is based on a simple principle. The time limit should only begin to run once the donor has actually relinquished the enjoyment of the gifted item. Anyone who formally transfers ownership but retains full economic control has, in the eyes of the law, not yet relinquished possession. Giving something away whilst still retaining it does not, therefore, work in the context of the compulsory portion supplement.
The most important scenario is usufruct. If the donor reserves the right to continue using the property and to receive its income, such as rental income, the ten-year period does not, as a rule, begin to run. The gift is then assessed at its full value, even if the transfer took place decades ago.
When it comes to the right of residence, it depends on the scope of the right. A comprehensive right of residence covering the entire property may also prevent the limitation period from commencing. If, on the other hand, the right is limited to individual rooms or a flat within the house, the limitation period generally begins to run according to the case law of the Federal Court of Justice, because the donor is then no longer the owner of the property. The distinction depends on the individual case and is one of the most common points of dispute in supplementary inheritance cases.
A strict special rule applies to gifts made to a spouse. In such cases, the time limit does not begin until the marriage has been dissolved. If the marriage is terminated only by death, the time limit has never begun to run. Gifts between spouses are then taken into account in full, regardless of the spouses’ ages, without any reduction whatsoever.
The situation is different in the case of an agreed life annuity. If the recipient undertakes to pay the donor a monthly annuity for the rest of the donor’s life, this does not prevent the period from commencing, according to a recent ruling by the Federal Court of Justice from 2026, even if the annuity has been secured in the land register. In this case, the donor no longer uses the property; they merely receive money. The time limit therefore runs from the date of the transfer of ownership. The value of the promised annuity is taken into account as consideration in accordance with general principles, so that only the part of the transfer made free of charge is included in the supplementary calculation.
How gifted assets are valued
The amount of the top-up is determined by the value of the gift, and the so-called ‘lowest value principle’ applies here. In the case of non-consumable assets, particularly property, the value on the date of death is compared with the value at the time of the gift, and the lower of the two is used. For consumable assets such as money, the amount at the time of the gift is taken into account.
In neither case is the earlier value simply carried over; instead, it is adjusted for inflation, i.e. extrapolated to the purchasing power on the date of death using the consumer price index. Without this adjustment, older gifts would appear artificially low simply as a result of inflation. Particularly in the case of property, where prices may have multiplied over a period of 15 or 20 years, this calculation can result in substantial sums.
If the donor has reserved rights in respect of the property – such as a right of usufruct or a right of residence – the value of these rights may reduce the gift value to be assessed. This makes the valuation a complex process and, in practice, is often the actual point of contention. The market value – that is, the price that could be obtained on the market – is always the decisive factor, not the previous purchase price and not a tax value. When it comes to property, there is rarely any way round carrying out a thorough valuation.
The calculation, step by step
The calculation always follows the same pattern. First, the actual estate is determined as at the date of death, i.e. all assets minus liabilities. In the second step, the eligible gifts are added at their reduced value. The result is the notional estate. In the third step, the compulsory portion – that is, half of the statutory share of the inheritance – is applied to this notional estate. Finally, any amounts that the beneficiary has already received or is due to receive from the actual estate – such as a share of the inheritance, a bequest or a compulsory portion that has already been paid – are deducted. What remains is the supplementary claim.
A worked example illustrates how this all fits together. A widowed father has two children. He names his daughter as his sole heir; his son is disinherited. He had transferred ownership of a flat to his daughter. The relevant transfer of title in the land register took place a good five years – and thus in the sixth year – prior to the opening of the succession. The flat was worth 260,000 euros at the time of transfer and 240,000 euros on the date of death. The lower value of 240,000 euros is taken as the basis; due to the reduction, 50 per cent of this is applied, i.e. 120,000 euros. The actual estate amounts to €150,000. The notional estate therefore stands at €270,000. As one of two children, the son would have inherited half; his statutory share is therefore one quarter. He is entitled to a total of 67,500 euros, comprising 37,500 euros as his ordinary statutory share from the actual estate and 30,000 euros as a supplementary payment.
If the beneficiary has themselves received gifts from the deceased, the situation becomes more complex. The gift they received is also added to the estate, but at the same time is set off against their statutory share (Section 2327 of the German Civil Code (BGB)), according to the prevailing view, even if it was received more than ten years ago. In addition, the testator may have expressly stipulated in relation to a gift that it is to be set off against the compulsory share (Section 2315 of the German Civil Code (BGB)). Anyone who has received a gift themselves should therefore assess their claim realistically before making excessive demands.
Who has to pay the additional amount
The heirs are initially liable for the supplementary claim; where there are several heirs, they are jointly and severally liable. The claim arises upon the opening of the succession and is immediately due. A special provision protects heirs who are themselves entitled to a compulsory share. They may refuse payment to the extent that they would otherwise be left with less than their own compulsory share, including their own supplementary payment (Section 2328 of the German Civil Code (BGB)).
If the estate is insufficient to cover the shortfall, or if it is virtually empty, the claim does not lapse. In this case, the entitled party may, subject to the conditions set out in Section 2329 of the German Civil Code (BGB), make a claim directly against the recipient of the gift. However, the recipient is not necessarily obliged to return the gift; they may avoid having to do so by paying the shortfall, which is the usual course of action in practice. If several people have received gifts, the person who received the gift most recently is liable first. Even if the entitled person is the sole heir to a worthless estate, they may take action against the recipients in this way.
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How to find the information you need
Anyone who suspects that there may be additional assets faces an initial information problem, as outsiders are rarely aware of the details of past gifts. The law provides an effective tool for this purpose. Those entitled to a compulsory share may require the heirs to provide a complete inventory of the estate (Section 2314 of the German Civil Code (BGB)), which, according to case law, must also include gifts made during the testator’s lifetime. Upon request, the inventory must be drawn up by a notary, who independently determines the contents of the estate rather than merely copying the information provided by the heirs. In addition, a valuation by experts may be required for individual items, particularly for property. The costs of this are borne by the estate, not by the beneficiary.
Banks do not provide information about the deceased’s accounts to individuals who are not heirs. Whilst it is possible to inspect the land register if one has a legitimate interest, this does not provide a complete picture. The process therefore generally involves the heirs. If they refuse to provide the information, the claim can be enforced through the courts, usually by means of a staged claim seeking first disclosure and then payment. Lawyers handle this legal enforcement.
Certain documents have proved to be particularly important for assessing the claim, insofar as they are available. These include
- the will or inheritance contract and the death certificate,
- the inventory of the estate drawn up by the heirs, preferably in a notarised form,
- Deeds of transfer and gift, as well as extracts from the land register,
- Documents relating to reserved rights such as usufruct or the right of residence,
- Account and custody account documents, where available,
- Evidence of the deceased’s debts and details of the matrimonial property regime.
It is not necessary for the information to be complete at the outset. Any missing elements can be obtained by exercising the right to information.
If access to information or a payment is blocked
Normally, you would make a standard claim for your statutory share and any supplementary payment from the heirs, who would then pay you. Things become difficult if information is provided only reluctantly or incompletely, if gifts are underestimated, or if 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. Legal representation is always provided by a specialist solicitor.
Your no-obligation enquiry is free of charge, confidential and takes just a few minutes to complete.
What are the time limits for enforcement?
As with the compulsory share, the claim for a supplementary payment is generally subject to a limitation period of three years in relation to the heirs. The limitation period begins at the end of the year in which the entitled person becomes aware of the opening of the succession, of their disinheritance and of the gift, and knows who has become an heir. Ignorance due to gross negligence is treated as equivalent to knowledge in this regard. Irrespective of any such knowledge, the right to enforce the claim expires at the latest 30 years after the opening of the succession.
The time limit is considerably stricter for recipients of gifts. The claim under Section 2329 of the German Civil Code (BGB) becomes time-barred exactly three years after the date of death, regardless of whether the entitled party was even aware of the gift (Section 2332 BGB). Anyone who only discovers in the fourth year that the estate is depleted due to large gifts will be too late to make a claim against the recipient. Particularly where an estate is conspicuously meagre, there is therefore a strong case for requesting information at an early stage and keeping a close eye on the time limits.
Common points of conflict and mistakes
The ten-year period under inheritance law is most commonly confused with the one under tax law. The fact that gift tax allowances can be utilised anew every ten years has nothing to do with the compulsory portion supplement. The two periods operate according to their own rules and may expire at different times. A property that has been transferred subject to a right of usufruct may have long since been excluded from tax liability, yet still be included in full in the supplement.
Generalised judgements are similarly common when it comes to the right of residence, and this applies in both directions. Not every right of residence suspends the limitation period, nor does the limitation period always continue to run. It depends on the extent to which the donor was able to continue using the property. Anyone relying on a rule of thumb here will either forfeit legitimate claims or demand sums that cannot be justified.
A great deal of money is also lost during the valuation process. Heirs often value gifted properties at the original purchase price or a generously rounded-up sentimental value. However, it is the market value that is decisive, and the previous value must be adjusted for inflation. Anyone who has doubts can request a valuation at the estate’s expense and should not be put off by an initial low figure.
Conversely, rent-free accommodation is often overestimated. Although being able to live in a flat free of charge for many years feels like a great gift to the other family members, according to prevailing case law this does not generally give rise to a claim for supplementary maintenance. Anyone who bases their claim solely on this is on thin ice.
Ultimately, the most costly pitfall is the short time limit vis-à-vis the beneficiary. Where an estate is empty or heavily in debt, the claim against the beneficiary is often the only viable course of action, and it is precisely this claim that becomes time-barred three years after the date of death, regardless of any late discoveries. In a serious case, any delay here will result in the loss of the entire claim.
Frequently Asked Questions
What is the difference between a compulsory portion and a supplementary claim to a compulsory portion?
The compulsory share is the minimum share of the estate as it actually stands on the date of death. The claim for supplementary payment serves to compensate for any reduction in the estate resulting from previous gifts. Both are monetary claims against the heirs and are, in practice, asserted together.
What is the approximate amount of the supplementary benefit?
There is no fixed figure. The calculation in this article serves as a guide. The reduced values of the gifts are added to the actual estate; the compulsory portion is then applied to this total, and any amounts already paid out from the estate are deducted. The amount therefore depends primarily on the statutory share, the value of the gifts and how long ago they were made.
Do gifts made before I was born or before I got married count?
Yes. According to the case law of the Federal Court of Justice, it is sufficient for the entitlement to a compulsory share to exist at the time of death. A child may therefore also include gifts made before their birth in the calculation. The overwhelming majority of legal scholars hold that the same applies to gifts made prior to marriage.
Do recipients have to return the gift?
Not usually. As long as the heirs are able to pay, the gift remains untouched. Only if the estate is insufficient may a direct claim be made against the recipient, and even then, the recipient can avoid being required to return the gift by paying the shortfall.
What happens if the estate is practically empty?
Even in such cases, it may be worth looking into. The notional estate is formed from the gifts, and the recipient may be required to make good the shortfall, subject to the conditions set out in Section 2329 of the German Civil Code (BGB). It is important to note the short limitation period of three years from the date of death.
Are standard birthday and Christmas presents included?
No. Occasional gifts within the usual limits are regarded as customary gifts and are excluded. Where the line is drawn depends on the deceased’s financial circumstances. An expensive car given as a birthday present may well be subject to supplementary tax if the deceased’s circumstances were modest.
Do gifts to a spouse always count in full?
Provided the marriage lasted until death, yes. In the case of gifts between spouses, the ten-year period only begins upon the dissolution of the marriage. If the marriage ends only upon the death of one of the spouses, the period has never begun to run, and the gifts are taken into account in full.
How much time is left for enforcement?
In relation to heirs, the limitation period is three years from the end of the year in which you became aware of the opening of the succession, disinheritance or gift. In relation to donees, the limitation period is three years from the date of death, regardless of when you became aware of it. The absolute limit in relation to heirs is 30 years from the opening of the succession.
When a quick payout is more important than the maximum amount
Cases involving supplementary claims in particular often drag on because of disputes over information, expert reports and property valuations. Sometimes, a swift settlement is more important than that final percentage point. In such cases, you can sell your statutory share, including the supplementary payment, to Erbfinanz and receive prompt payment without having to settle 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.
What matters in the end
An estate that appears to have been completely cleared out is often not the final word. The compulsory portion supplement effectively recovers gifted assets in accounting terms and frequently turns a symbolic payment into a substantial claim. It is crucial to understand how this works. Anyone who is aware that the ten-year limitation period often does not apply at all in the case of usufruct or gifts between spouses, that values must be compared on an inflation-adjusted basis, and that a strict three-year deadline from the date of death applies in relation to the recipients of gifts, can assess their position realistically and act in good time. Information from the heirs is key here, because without a complete picture of the gifts, any calculation will remain incomplete.
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.