How is the compulsory portion calculated? This is how you can find out and claim your share of the inheritance yourself
The compulsory portion represents a legally guaranteed share of the inheritance to which certain close relatives of the deceased are entitled, even if they were not included in the will or inheritance contract. This entitlement guarantees the next of kin a minimum financial share of the estate. The compulsory portion is half of the statutory inheritance share, which means that the statutory inheritance share must first be determined in accordance with the provisions of the German Civil Code (BGB).
The composition of the statutory inheritance share depends on the order of inheritance and the deceased's marital status. For example, if the deceased was married under the community of accrued gains regime, this has a significant impact on the division of the estate. The surviving spouse and the deceased's children will share in the inheritance according to fixed quotas. The exact share of each beneficiary depends on the number and degree of relationship of the legal heirs.
What is the compulsory portion and who is entitled to it?
As a rule, the spouse, children and, if there are no children, the parents of the deceased are entitled to a compulsory portion. The compulsory portion is always half of the statutory inheritance share. Despite disinheritance by will or inheritance contract, these persons have an inalienable claim to a portion of the inheritance. The exact value of the compulsory portion depends on various factors, including the composition of the estate and the number of legal heirs.
Significance of the compulsory portion
The compulsory portion plays an important role in German inheritance law by guaranteeing financial security for the deceased's next of kin. It protects the closest family members from being left completely empty-handed if they were not included in the will or inheritance contract. This statutory provision thus contributes to the social security of the entitled persons.
The calculation of the compulsory portion ensures that the will of the testator is respected, but at the same time the basic needs of the closest family members are not disregarded. This creates a balance between the testator's freedom to make a will and the family's need for protection.
Identification of persons entitled to a compulsory portion
The persons entitled to a compulsory portion primarily include the spouse, the children and, if there are no children, the parents of the deceased. In certain cases, other relatives such as siblings of the deceased may also be entitled to a compulsory portion, particularly if they are related in a direct line and there are no closer relatives.
Identifying the persons entitled to a compulsory portion requires a precise examination of the family circumstances of the deceased and the existing provisions in the will or inheritance contract. This is an essential step in determining the group of beneficiaries and correctly calculating the corresponding compulsory portion.
Step-by-step guide to calculating the compulsory portion
Calculating the compulsory portion is a multi-stage process that requires a careful examination and valuation of the estate. This process begins with the identification of the persons entitled to a compulsory portion and ends with the determination of the exact value of the compulsory portion claim. A structured approach is essential in order to correctly consider all relevant aspects.
1. check entitlement to a compulsory portion
Checking the entitlement to a compulsory portion is the first step in calculating the compulsory portion. This phase involves identifying those persons who are legally entitled to a share of the estate in accordance with Section 2314 of the German Civil Code (BGB). This entitlement exists regardless of whether or not they were included in the will or inheritance contract.
Criteria and requirements
The criteria for entitlement to a compulsory portion are set out in the German Civil Code (BGB) and include the deceased's marital status and family relationships. The requirements for entitlement to a compulsory portion vary depending on the individual circumstances of the inheritance and must be examined carefully.
In addition, the value of the estate must be determined in order to calculate the amount of the compulsory portion claim. This includes a detailed list of all assets and liabilities of the deceased at the time of death.
2. determination of the compulsory portion
The compulsory portion quota is a decisive factor in the calculation of the compulsory portion. It indicates what share of the statutory inheritance the person entitled to a compulsory portion would receive if they had not been disinherited. This value is calculated on the basis of the fictitious statutory inheritance share and is usually half of this.
Mandatory portion of the surviving spouse
The compulsory portion of the surviving spouse depends on the matrimonial property regime. The matrimonial property regime of community of accrued gains is of particular importance as it influences the surviving spouse's share of the estate. The exact quota varies depending on the specific circumstances of the individual case.
It is important to consider all relevant factors, including the matrimonial property regime and any other statutory inheritance claims, in order to correctly determine the spouse's reserved share. An accurate determination of this quota is crucial for the fair and equitable distribution of the estate.
Mandatory portion quota for children
The compulsory portion for children is divided equally among all entitled descendants. This means that each child receives an equal share of the compulsory portion. The calculation also takes into account the position of any grandchildren of the deceased who may enter the line of succession if a child of the deceased has already died.
The determination of the compulsory portion for children depends on the respective inheritance law and the specific family circumstances. A careful examination of these factors is necessary to ensure a fair distribution of the estate and to protect the rights of all children entitled to a compulsory portion.
3. determine the value of the estate
Determining the value of the estate is a key step in calculating the compulsory portion. All assets belonging to the estate are recognised and valued. This includes both tangible and intangible assets. The valuation should be carried out on the date of the deceased's death in order to determine a current and fair value of the estate.
Inclusion of the estate and valuation
When including the estate in the calculation of the compulsory portion, all assets and liabilities of the deceased must be taken into account. This includes the valuation of real estate, bank accounts, securities and other tangible and intangible assets. The valuation is usually based on an estimate to determine the market value of the assets at the time of inheritance.
The valuation of the estate plays a decisive role in determining the compulsory portion. It must be carried out carefully and taking into account all relevant information. The involvement of an expert may be necessary in some cases to ensure an accurate and objective valuation.
4. take into account deductible liabilities
When calculating the compulsory portion, debts left by the deceased and liabilities incurred as a result of the inheritance must also be taken into account. These reduce the value of the estate and therefore also the amount of the compulsory portion. Deductible liabilities include, for example, debts of the deceased and costs directly related to the inheritance.
Important examples of liabilities that reduce the estate are claims for equalisation of gains, maintenance claims, funeral costs and costs for the opening of a will. These items must be deducted from the total value of the estate in order to determine the adjusted value that is relevant for calculating the compulsory portion.
5. consideration of gifts
When determining the compulsory portion, gifts made by the testator during his or her lifetime must also be taken into account. These can influence the compulsory portion, especially if they were made shortly before the inheritance. Gifts are taken into account according to a staggered system in which the time of the gift determines the extent to which the compulsory portion is taken into account.
Claims to supplement compulsory portions through gifts
The so-called claim to a supplementary compulsory portion comes into play if the testator has given away assets during their lifetime. The intention behind this could be to reduce the value of the estate and thus reduce the compulsory portion claims of the heirs. However, such gifts are not simply ignored. If they were made in the last ten years before his death, these gifts must be added to the value of the estate in order to calculate the compulsory portion correctly.
It is important to understand that not every gift automatically leads to a claim for a supplementary compulsory portion. The valuation and inclusion of such gifts depends on various factors, including the closeness of the relationship between the testator and the donee and the timing of the gift. The precise rules in this regard are complex and often require detailed legal scrutiny.
Recognition of gifts to persons entitled to a compulsory portion
Gifts made by the testator to persons entitled to a compulsory portion during the testator's lifetime can also have an impact on the calculation of the compulsory portion. In principle, such gifts are offset against the compulsory portion in order to avoid overcompensation of the heir entitled to the compulsory portion. This means that gifts already received can reduce the value of the compulsory portion that the beneficiary is entitled to claim from the estate.
However, the offsetting is not automatic. Those entitled to a compulsory portion have the option of waiving the deduction, which can be particularly useful if the gift was made under certain conditions or represents a special personal value. Here too, the details of the individual case play a decisive role and should be analysed carefully.
Special aspects of the calculation of the compulsory portion
The calculation of the compulsory portion is a complex procedure that is influenced by a variety of factors. Not only the amount of the estate and the number of persons entitled to a compulsory portion play a role, but also special regulations, such as gifts made during the testator's lifetime or the effect of different matrimonial property regimes. Each of these factors can significantly influence the calculation of the compulsory portion and requires individual consideration and assessment.
Effects of different matrimonial property regimes
The choice of matrimonial property regime can have a significant impact on the calculation of the compulsory portion. Particularly in cases where the testator was married, the matrimonial property regime can be decisive in determining how the estate and thus the compulsory portion are to be calculated. The three basic matrimonial property regimes - community of accrued gains, separation of property and community of property - each have different rules regarding the estate and the compulsory portion claims.
Community of accrued gains and compulsory portion
In a community of accrued gains, the compulsory share of the surviving spouse is increased by the so-called equalisation of accrued gains. The gains realised during the marriage are added to the estate and the surviving spouse receives an additional share in addition to their regular inheritance share. This has a direct effect on the calculation of the compulsory portion and can result in the compulsory portion being higher than originally assumed.
The calculation of the equalisation of gains and its influence on the compulsory portion requires a precise analysis of the increase in assets achieved during the marriage. The value of the estate must be correctly recognised and the gains fairly distributed in order to determine the correct compulsory portion.
Separation of property and its influence on the compulsory portion
In the case of separation of property, the spouses' assets remain completely separate. In this case, the matrimonial property regime has no direct influence on the amount of the compulsory portion. The compulsory portion is calculated solely on the basis of the value of the estate left by the testator. This simplifies the calculation of the compulsory portion, as no increases in assets from the period of marriage have to be taken into account.
Nevertheless, all of the testator's assets and liabilities must be accurately recorded and valued in order to correctly determine the compulsory portion. The separation of property therefore does not automatically lead to a lower compulsory portion, but merely influences the basis of the calculation.
Community of property and its influence on the compulsory portion
In the case of a community of property, the entire assets of both spouses are regarded as joint assets. When calculating the compulsory portion, the total value of this joint property must therefore be determined and the deceased's share of it calculated. This can make the calculation of the compulsory portion more complicated, as it is necessary to determine exactly which part of the assets is attributable to the testator.
Determining the value of the estate relevant to the compulsory portion in a community of property requires a careful division of the joint assets and an accurate valuation of the individual assets. This is the only way to ensure that the compulsory portion is calculated appropriately and that both spouses are treated fairly.
Frequently asked questions (FAQ)
Important answers on the compulsory portion
The calculation of the compulsory portion is an essential aspect of inheritance law that is of great importance for close relatives of the deceased. Descendants, the spouse or registered partner and, in some cases, the parents of the deceased are entitled to a compulsory portion. In order to calculate the compulsory portion of the inheritance, the value of the estate must first be determined. The number of beneficiaries is also relevant. An online compulsory portion calculator can be used for an initial estimate. The statutory compulsory portion is always half of the share of the estate to which the beneficiary would be entitled according to the statutory order of succession, whereby the exact amount depends on various factors, including the family relationship and the value of the estate.
How much is a child's compulsory portion?
The amount of a child's compulsory portion depends largely on whether the testator was married and the relationship of the child to the testator. In principle, a child's compulsory portion is half of the statutory inheritance share to which the child would be entitled if there were no testamentary provisions. This means that if the testator is married and has a spouse, the child's compulsory portion may be lower than if the testator is single or widowed.
It is also important to bear in mind that the calculation of a child's compulsory portion is also influenced by the number of beneficiaries and the composition of the estate. Tangible assets, real estate and other assets of the deceased play a role in determining the value of the estate, which in turn is decisive for determining the compulsory portion.
Can the compulsory portion be withdrawn?
Under certain circumstances, the compulsory portion of a beneficiary can be withdrawn, although these cases are strictly regulated by law. Reasons for a withdrawal can be serious misconduct towards the testator, such as a serious criminal offence. Such a measure must also be expressly stipulated by the testator in their will. The burden of proof and the legal requirements for a successful withdrawal of a compulsory portion are high and in most cases a legal dispute is required to enforce the withdrawal.
Despite the theoretical possibility of withdrawing the compulsory portion, this tends to be the exception in practice. The hurdles for this are deliberately set high in order to safeguard the legally protected minimum claims of close relatives. If a person believes they have legitimate grounds for withdrawing a compulsory portion, expert legal advice is essential.
Conclusion: Your guide to the compulsory portion
Summary of the key points
Inheritance law stipulates that close relatives of the deceased, including in particular children and the surviving spouse, receive a minimum share of the inheritance even if they were not included in the will or even expressly disinherited. This minimum share, known as the compulsory portion, corresponds to half of the statutory inheritance share. The calculation of the compulsory portion depends on the value of the estate at the time of inheritance. Gifts made by the testator during his or her lifetime are also of particular importance, as these can, under certain circumstances, influence the claim to a supplementary compulsory portion.
It is also important to note that the compulsory portion must be claimed and is not paid out automatically. The heir has a duty to inform the persons entitled to a compulsory portion about the size of the estate. In cases where there are no children, the testator's parents may also be entitled to a compulsory portion. The stipulation in the testator's will can play a decisive role, especially when it comes to the exclusion from the inheritance or the arrangement of certain bequests.
The importance of expert advice
Expert advice is invaluable in the area of inheritance law, especially when it comes to calculating and enforcing claims to a compulsory portion. Complex legal provisions, the valuation of the estate, the consideration of gifts and the determination of the compulsory portion require not only a deep understanding of the subject matter, but also experience in dealing with the often emotionally charged matters that inheritance cases entail.
A specialised lawyer can not only help to correctly calculate the compulsory portion and assert claims, but also advise on the extent to which certain provisions in the will can influence the compulsory portion claims. In addition, legal representation can be crucial in enforcing the rights of those entitled to a compulsory portion in court, especially if the heir does not voluntarily pay the compulsory portion or if wills are contested. The support of an expert can be crucial, especially in the case of high estate values or international matters.
