Compulsory portion and disinheritance - your most important questions and answers

A will is read out, and your own name is missing. Instead, a sibling inherits everything, or the father’s second wife, or someone else entirely. For those who have been passed over, this is often a double blow: first the loss, then the feeling of having been cut out of the family.

In legal terms, this situation is known as disinheritance, and it affects more people than the term might suggest. It is not only those who have been expressly removed from the will who are disinherited. Anyone who is simply not mentioned in the will, even though they would have been a statutory heir as a child or spouse, is also disinherited. However, close relatives do not usually end up with nothing. The law guarantees them a minimum share of the value of the estate, known as the compulsory portion.

This page answers the most frequently asked questions following a disinheritance, covering everything from eligibility and the amount involved to time limits and tax. Where a topic requires more detail – such as the exact calculation or how to claim – a link takes you to a more detailed article.

What does it mean to be disinherited?

In the absence of a will, the statutory order of succession applies. This determines who inherits the estate and in what order: first the children and the spouse, followed by more distant relatives. By drawing up a will or an inheritance contract, the testator may deviate from this order and determine for themselves who is to inherit. Anyone who is thereby excluded from the line of succession is disinherited.

No explicit clause is required for this. If parents appoint one of their children as sole heir, the other children are excluded from the line of succession without the word ‘disinheritance’ ever being mentioned. The same applies to the common ‘Berlin will’, in which spouses appoint each other as sole heirs. Upon the death of the first parent, the children they have in common are thus initially disinherited, often without the parents having intended to harm them. For the Separate rules apply to children’s statutory share, right through to penalty clauses designed to penalise the assertion of claims in the first instance of inheritance.

Most people find out about their disinheritance through a letter from the probate court. The court opens the will and usually also notifies those who would have become statutory heirs had there been no will, generally by sending them a copy of the will. Anyone who does not appear as an heir in the will thereby realises that the issue of their statutory share is now relevant to them. For anyone who is currently disinherited A dedicated guide sets out the first steps.

What constitutes the compulsory share, and what does not?

The compulsory share is the minimum share of the value of the estate that the law guarantees to the next of kin (Section 2303 of the German Civil Code (BGB)). It amounts to half the value of the statutory share of the inheritance, i.e. the share to which the person would have been entitled had there been no will.

The key factor is its legal nature. The compulsory share is purely a monetary claim against the heir or heirs. Anyone who claims it does not become a co-heir, does not become a co-owner of the house, does not receive any items from the estate and has no say in its distribution. This distinction shapes everything that follows, from calculation to enforcement, and it is the point that is most frequently misunderstood within families.

The claim arises upon the opening of the succession and is immediately due (Section 2317 of the German Civil Code (BGB)). The heirs cannot therefore delay payment on the grounds that the estate has not yet been distributed or that the assets are tied up in the house. However, the compulsory share is not paid out automatically. No public authority or court will deal with this on its own initiative. Anyone wishing to claim it must assert their claim against the heirs themselves.

Who is entitled to a compulsory share and who is not?

Only three groups of relatives are entitled to a compulsory share (Section 2303 of the German Civil Code (BGB)):

• the deceased’s descendants, that is, their children; if a child is not included, for example because they predeceased the deceased, their children take their place,
• the spouse or registered civil partner,
• the deceased’s parents, but only if there are no descendants.

Marital, non-marital and adopted children are treated on a completely equal footing in this respect. Grandchildren are only entitled to a share if the child through whom they are related to the deceased is themselves unable to claim their statutory share, which is usually the case following the child’s death (Section 2309 of the German Civil Code (BGB)). Whether Grandchildren have a right of their own, the decision is therefore made by the generation above.

All others are not entitled to a compulsory share. Siblings are never entitled to a compulsory share, even if they have cared for and supported the deceased for many years. The same applies to nieces, nephews and grandparents, to stepchildren who have not been adopted, and to unmarried partners, regardless of how long the relationship lasted. Even a divorced spouse is not entitled to a compulsory share.

When the compulsory share applies even without complete disinheritance

Anyone who has been included in a will but has received less than their statutory share may claim the difference from the heirs. This residual statutory share (Section 2305 of the German Civil Code (BGB)) prevents the minimum entitlement from being undermined by a symbolically small share of the estate. The situation is similar where a person has been bequeathed only a legacy, i.e. a single asset such as a sum of money or a specific item. In such cases, the beneficiary has the choice of either retaining the bequest and claiming the difference up to the amount of the statutory share, or renouncing the bequest and claiming the full statutory share (Section 2307 of the German Civil Code (BGB)).

Caution is advised if a share of the estate to which one is entitled is subject to encumbrances, such as the appointment of an executor, a reversionary interest or bequests in favour of others. In such cases, a Renunciation paves the way for the full statutory share (Section 2306 of the German Civil Code (BGB)). However, the time limit for renouncing an inheritance is only six weeks (Section 1944 BGB), and anyone who renounces an inheritance without such a condition attached will, as a rule, also forfeit their statutory share. Whether renouncing an inheritance gives rise to or extinguishes a claim is therefore one of the issues that a specialist solicitor will usually examine before any declaration is made.

After all, a claim may still exist even if the estate appears to be empty because the deceased gave away their assets during their lifetime. This is where the claim for a supplementary compulsory portion comes into play.

How high is the compulsory portion?

The calculation consists of two components. The first is the compulsory share, i.e. half of the statutory inheritance. To determine this, one considers what the person would have been entitled to in the absence of a will, and then halves that share. The second component is the value of the estate on the date of death (Section 2311 of the German Civil Code (BGB)). The estate includes, for example, property at market value, bank balances, securities and household effects. The deceased’s debts and the costs associated with the death – primarily the funeral – are deducted. Applying the statutory share to this adjusted value gives the statutory share in euros.

Here is an example. A mother leaves behind her husband and two children and names him as her sole heir. Under the statutory matrimonial property regime, each child would have inherited a quarter in the absence of a will. The statutory share for each child is therefore one-eighth. With a net estate of 320,000 euros, each child can claim 40,000 euros from the sole heir.

For the surviving spouse, the proportion also depends on the matrimonial property regime, and with the ‘large’ and ‘small’ compulsory shares, there are two methods of calculation which can result in significantly different amounts. Which of these is cheaper for married couples, depends on the specific increase in assets and is usually reviewed by a solicitor. Our guide to … explains how the share and the value of the estate can be calculated in detail. Calculating the statutory share, step by step.

To get a general idea, you can also use our free Legal share calculator use. It simply asks about your family situation; you do not need to provide details of your assets. Within a few minutes, you will see whether you are in principle eligible and what percentage is likely to apply to you.

How do you claim your statutory share?

The process is normally straightforward and does not require court proceedings. The first step is to establish who has become the heir, as the claim is directed against that person. In most cases, this is already clear from the letter from the probate court.

This is followed by the most important intermediate step: the provision of information. Those who have been disinherited are rarely aware of the account balances or the value of the house. The law therefore 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, drawn up on request by a notary, who determines the contents themselves. For property, a valuation by an expert may also be requested, and the costs of the inventory and the valuation are borne by the estate. If there are doubts as to the accuracy of the information provided, the heir may be required to affirm its correctness by statutory declaration. Specific enquiries should be made regarding any gifts made in recent years, as experience shows that heirs rarely mention these of their own accord. In what order Seeking information, compensation and payment out of court Our article on the step-by-step reminder process explains this.

On this basis, the claim is quantified and a demand for payment, setting a reasonable deadline, is sent to the heirs. No specific form is required, but for evidential reasons, the written route has proved effective. If the heirs fail to pay despite the claim being due, or if they refuse to provide information, the claim can be enforced through the courts, often via a staged action that first seeks the provision of information and then payment. You will be represented by a specialist solicitor in inheritance law. An amicable settlement is also possible at any stage, such as a lump-sum settlement or payment in instalments. Our article on the Procedure for claiming a compulsory share.

What deadlines apply?

The most important time limit is the limitation period. The claim to a compulsory share is generally subject to a limitation period of three years (Sections 195 and 199 of the German Civil Code (BGB)). The period begins at the end of the year in which the beneficiary became aware of the death and of the disposition that adversely affects them. If a father dies in June and the daughter who has been disinherited learns of his death and the will in the same year, her limitation period ends three years later on 31 December. Irrespective of whether she is aware of these facts, the right to claim expires at the latest thirty years after the opening of the succession.

Two aspects of this are frequently misunderstood. A simple letter to the heirs does not suspend the limitation period, nor does a request for information. The limitation period is only suspended whilst both parties are negotiating the claim in good faith, or if legal proceedings are brought (Sections 203 and 204 of the German Civil Code (BGB)). Anyone still waiting for a response shortly before the end of the year will therefore not automatically be granted an extension.

In addition, there are a number of shorter time limits, such as the six-week period for renouncing a burdened share of an inheritance. And if the recipient of a gift is to be held liable on account of that gift, this claim becomes time-barred exactly three years to the day after the death, even if the entitled party was unaware of the gift (Sections 2329, 2332 of the German Civil Code (BGB)). Anyone who suspects they have a claim therefore gains nothing by leaving the matter dormant for years. Our article on the Obstacles and time limits regarding the compulsory share in.

When the statutory share may be withdrawn or excluded

Many people who have been disinherited are concerned that the testator may also have deprived them of their statutory share, for example because the will states that a particular person is to receive nothing. This concern is usually unfounded. Such a clause merely results in disinheritance; the statutory share remains unaffected.

The testator may only completely exclude a beneficiary from their statutory share in a few cases, which are exhaustively set out in law (Section 2333 of the German Civil Code (BGB)). In the case of descendants, this requires that the person concerned

• who has attempted to take the life of the testator, the testator’s spouse, another descendant or a person as closely related to the testator as the testator,
• has committed a crime or a serious intentional offence against one of these persons,
• has wilfully breached his statutory duty to support the deceased, or
• has been convicted, by a final judgement, of an intentional criminal offence and sentenced to at least one year’s imprisonment without parole, and it was therefore unreasonable for the testator to allow him to share in the estate.

The same applies to the disinheritance of a child or spouse’s statutory share. However, a broken relationship, years of no contact or a dispute over care are not sufficient grounds. Furthermore, the disinheritance must be stipulated in the will itself, and the grounds must have already existed at the time the will was drawn up and must be stated therein (Section 2336 of the German Civil Code (BGB)). The burden of proof lies with the person invoking the disinheritance, which is usually the heir. If the testator had forgiven the person concerned, the disinheritance is invalid (Section 2337 of the German Civil Code (BGB)).

There are also limits to circumventing the compulsory share. If the testator gifts away their assets during their lifetime, the right to a supplementary compulsory share applies. In essence, the compulsory share can only be validly excluded with the consent of the beneficiary themselves, namely through a waiver of the compulsory share. This is a contract between the testator and the beneficiary, which must be notarised and is usually concluded in return for a settlement (Sections 2346, 2348 of the German Civil Code (BGB)). No one can be compelled to enter into such a waiver, and even a A contract of inheritance alone does not eliminate the statutory share. If a child of the testator renounces their inheritance, in cases of doubt the renunciation shall also extend to that child’s own descendants, unless the contract provides otherwise (Section 2349 of the German Civil Code (BGB)).

What happens if a gift was made during the donor’s lifetime?

The compulsory share is initially calculated on the basis of the assets still in existence on the date of death. If the testator were simply able to give these away beforehand, the minimum share would come to nothing. This is countered by the claim for a supplementary compulsory share (Section 2325 of the German Civil Code (BGB)). Gifts made during the ten years prior to the opening of the succession are added back to the estate for the purposes of the calculation, as if they were still in existence, and the statutory share is calculated on the basis of this increased value.

The extent to which a gift is taken into account depends on how long ago it was made. In the year immediately preceding death, it is taken into account in full; for each subsequent year prior to death, the amount taken into account is reduced by one-tenth. A gift of 200,000 euros made in the third year prior to the opening of the succession is therefore still taken into account at 160,000 euros. After ten years, a gift is no longer taken into account at all. Details of how the entitlement is calculated can be found in the article on this subject, how gifts increase the statutory share.

There are two exceptions to this ten-year period which are of great practical significance. In the case of gifts to a spouse, the period does not begin until the marriage is dissolved. Furthermore, it does not begin to run at all as long as the testator has continued to make economic use of the gifted item. This applies in particular to the common situation where a house was transferred into someone’s name during their lifetime, against a reserved usufruct or a comprehensive right of residence. A property which the father transferred to a child many years before his death, and in which he was permitted to continue living as before right up until the end, can therefore still be fully included in the calculation.

If the beneficiary has themselves received gifts from the testator, these are set off against the compulsory portion when it is calculated (Section 2327 of the German Civil Code (BGB)). By contrast, a gift made during the testator’s lifetime is only taken into account in calculating the normal compulsory share if the testator expressly stipulated this at the latest at the time the gift was made (Section 2315 of the German Civil Code (BGB)). If the estate is insufficient to cover the top-up, the recipient of the gift may themselves be held liable under the conditions set out in Section 2329 of the German Civil Code (BGB), subject to the aforementioned three-year time limit calculated to the day.

Is the statutory share subject to tax?

As an acquisition by reason of death, the compulsory share is subject to inheritance tax. However, the tax only becomes payable when the claim is made, not upon the testator’s death. The same tax-free allowances apply as for an inheritance. Children currently have an exemption of 400,000 euros, spouses and registered civil partners 500,000 euros, grandchildren 200,000 or 400,000 euros depending on the circumstances, and parents 100,000 euros. In many cases, the compulsory share therefore remains entirely tax-free. Only the portion exceeding the tax-free allowance is subject to tax; for the relatives mentioned, this is taxed at rates ranging from 7 to 30 per cent in the most favourable tax bracket.

As a general rule, the acquisition must be reported to the tax office within three months of the beneficiary becoming aware of it. In the case of larger sums, the tax implications should therefore be taken into account at an early stage, often with the assistance of a tax adviser or specialist solicitor.

Unusual family situations

In blended families, there’s a clear line. Biological children from previous relationships are fully entitled to a compulsory share, regardless of whether they grew up with the testator or had any contact with them at all. Stepchildren, on the other hand, are not entitled to a compulsory share unless they have been adopted, however close their relationship may have been.

In the case of adoption, it depends on the type. Anyone adopted whilst a minor is treated in exactly the same way as the adoptive parents’ biological children; as a rule, the legal ties to the birth family are severed. In the case of adult adoption, however, the family relationship with the biological parents generally remains in place. A person adopted as an adult may then be entitled to a compulsory share of the estate from both the adoptive parents and the biological parents. The situation is different only if, in exceptional cases, the adoption was granted with the same legal effects as an adoption of a minor.

Spouses living apart remain entitled to a compulsory share, as separation alone does not affect inheritance law. The spouse’s right to inherit, and with it the statutory share, only ceases to apply if, at the time of death, the conditions for divorce were met and the deceased had applied for or consented to the divorce (Section 1933 of the German Civil Code (BGB)). Once a divorce has become final, there is no longer any right to a statutory share.

In cases of inheritance with an international dimension, since 2015 the applicable law of succession in much of Europe has been determined by the deceased’s last habitual residence, rather than primarily by their nationality. If a German testator lived permanently abroad, foreign law may therefore apply, which may treat the statutory share differently or not recognise it at all. Instead, the law of the testator’s own nationality may be chosen in the will. Such cases should be reviewed by a specialist solicitor at an early stage, particularly if the beneficiaries themselves do not live in Germany.

Common points of conflict and mistakes

The most common dispute centres on the value of the estate. Heirs tend to undervalue property, omit household goods and jewellery, or submit a scant, self-compiled inventory. As every euro of the estate’s value directly affects the statutory share, beneficiaries are not obliged to accept a dubious inventory. A notarial inventory and expert reports are the tools provided for this purpose. Which items ultimately decide on the amount, as shown in a separate article.

The second classic tactic is stalling for time. Information is provided slowly, if at all; enquiries go unanswered; and with every passing year, the limitation period draws nearer. This is dangerous because the time limit simply continues to run.

Hasty declarations made in the heat of the moment can prove costly. Anyone who, in the heat of the moment, declares that they wish to have nothing to do with the inheritance, signs a waiver of inheritance, or agrees to a quick, lump-sum settlement, may thereby lose their statutory share or settle for far less than the inheritance is worth. Such declarations usually cannot be revoked.

Added to this is a misunderstanding about one’s own role. Some disinherited individuals negotiate with the heirs over the family home or individual mementoes and expect to have a say. However, they are only entitled to a financial settlement. Those who accept this early on negotiate on the right issue, namely the value of the estate.

Frequently Asked Questions

Will I be automatically informed if I have been disinherited?

As a rule, yes. The probate court will open any existing will and, in addition to the named heirs, will usually also notify the statutory heirs who have been disinherited. However, one should not rely on this. Anyone who learns of a death in the family and hears nothing further may enquire at the probate court in the deceased’s last place of residence. If there is neither a will nor an inheritance agreement, statutory succession applies, and there is no disinheritance.

Can I ask for my parents’ house or specific items instead of money?

No. The compulsory share is purely a financial entitlement. There is no entitlement to the house, the mother’s jewellery or any other items in the estate. However, it is possible to reach an agreement with the heirs to settle the claim, in whole or in part, through the transfer of assets, provided both parties agree to this. Our article on Statutory share in relation to houses and property.

Am I liable for the deceased’s debts if I have been disinherited?

No. The heirs are liable for the estate’s debts. Anyone who is only entitled to a compulsory share does not become an heir and does not assume any debts. However, if the estate is insolvent, the compulsory share is also forfeited, as it is calculated solely on the basis of a positive estate value. In such cases, it remains to be examined whether gifts made during the testator’s lifetime give rise to a claim for supplementary payment against the recipients.

How much does it cost to claim a compulsory share?

If an out-of-court settlement is reached, the costs are usually kept within reasonable limits. Things become expensive if an expert’s report is required or legal action has to be taken, as lawyers’ fees and court costs are based on the value of the claim, and this can quickly become high in the case of a compulsory share. Legal expenses insurance often provides only limited cover for inheritance disputes, or none at all. Our article on what to expect explains exactly what the The cost of claiming your statutory share without legal representation.

How long does it take for the compulsory share to be paid out?

The claim is due immediately. In practice, however, it usually takes several months before payment is made, as information must first be provided and the estate valued. If the heirs cooperate, it is realistic to expect the matter to be settled within a reasonable timeframe. If there is a dispute, for example over the value of a property or regarding gifts, the matter can drag on for years, particularly if legal action has to be taken. Incidentally, the heirs can only defer payment by means of a deferral, which is subject to strict conditions and remains the exception (Section 2331a of the German Civil Code (BGB)). Our article on this topic explains where most time is lost in the process and what factors can speed things up, showing how the Enables the statutory share to be paid out more quickly.

Do I have to deal with the heirs myself?

No. The claim can be entrusted entirely to an authorised solicitor, who will handle all the correspondence. Anyone wishing to hand over the dispute entirely can also sell their claim, as the right to a compulsory share is inheritable and transferable (Section 2317 of the German Civil Code (BGB)). The purchaser then pays an agreed sum and takes over the dispute with the heirs. What such a Sale of the claim A separate article explains what it offers and where its limitations lie.

Will I forfeit my statutory share if I choose not to claim it initially out of consideration for my family?

It does not lapse immediately, but it is subject to a limitation period. Once the three-year period has expired, the heirs can permanently refuse to pay. Anyone wishing to preserve family harmony can still assert their claim in a matter-of-fact manner. A request for information and payment is not an attack on the family, but a normal step provided for by law.

If the payment is blocked or delayed

Normally, no one needs any special help to claim their statutory share. It is claimed from the heirs, calculated and paid out. Things become difficult when the heirs stonewall. They provide no information, or only incomplete details; they underestimate the value of the estate; they conceal gifts; or they drag the matter out until the entitled person is worn down. This raises the question of whether one is prepared to pay for a solicitor, expert reports and, if necessary, legal proceedings out of one’s own pocket, without knowing when the money will come through.

This is where Erbfinanz comes in. We can Cost risk associated with enforcement We will cover these costs, so you do not have to pay for the solicitor, expert reports or court proceedings up front. The fee for this service is agreed transparently in advance and is only payable if the case is successful. The legal review and representation are always handled by specialist solicitors specialising in inheritance law with whom we collaborate, as Erbfinanz is not a solicitor and does not enforce claims itself.

Anyone who considers a secure, swift settlement more important than the highest possible amount can also sell to Erbfinanz and is paid out promptly, without having to resolve the dispute yourself. In return, the purchase price remains below the amount that might be awarded following a successful claim. Anyone who has the time and remains in contact with the heirs is therefore usually better off asserting the claim themselves.

Being omitted from a will does not mean you are left without any rights. We will discuss which course of action is best suited to your situation in a non-binding enquiry. It is free, confidential and comes with no obligations. For an initial assessment, simply describe what you know.