Compulsory portion legacy – the unknown being

Helmut A Graf,
Lawyer,
Partner

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If you are already familiar with inheritance law, you may know what a legacy is and what a compulsory portion is. But a compulsory portion? Never heard! This is the case for some heirs who, confronted with such a claim, hastily point out that either an existing claim to a compulsory portion is already statute-barred or that there is no claim to a compulsory portion with regard to the current inheritance due to a lack of family relationships. The problem regularly arises when either a person entitled to a compulsory portion has declared a waiver of a compulsory portion in a notarial agreement or, in the context of a blended family, a compulsory portion has been suspended in a joint marital will in favor of a child who is not a descendant of the last deceased.

Such a case has just landed on the author’s desk, which seems worth reporting, since it does not occur too often in practice and therefore some heirs and their legal advisors are too quick to go astray.

Dispute between brothers about a share in the estate of their mother and stepfather

The parties are brothers. The previously deceased mother was married to the deceased in a second marriage. The spouses had drawn up a joint will and provided it with the heading “Berliner Testament”. There they had arranged that they would mutually support each other as sole heirs for the first inheritance. At the same time, they had stipulated that the “son” who claims the compulsory portion in the first inheritance should also only receive the compulsory portion in the second inheritance.

For the second case of inheritance, they had then arranged that one of the sons (here: son 1) should be the sole heir because he always looked after her, while the other (here: son 2) should only receive the compulsory portion. So the spouses spoke of their sons, although the brothers were only the biological children of the mother and not of her husband. You weren’t adopted by him either.

The mother then passed away in 2016. The sons respected the will in the will and did not claim the compulsory portion against their spouses. The deceased died in 2021.

When it came to the distribution of the estate, son 1 initially stalled his brother for months, on the grounds that he first had to settle some things with the probate court. When son 2 did not give up and wanted to know what was going on with the estate, his brother finally informed him via WhatsApp that he had been unlucky, because his claim to a compulsory portion after his mother, who died in 2016, had already expired (note : Claims to a compulsory portion become statute-barred within 3 years) and with regard to the testator there is no right to a compulsory portion at all because he is not his biological father and therefore does not belong to the group of those entitled to a compulsory portion. Bad luck or short-sighted?

Appointment to a compulsory portion is actually a legacy (so-called compulsory portion legacy)

If we take a closer look at the will, we first find that a so-called Berlin will was not a good solution for the inheritance that regulated this, because this only fits if the children are legitimate, but not if they are as here a family relationship exists with only one spouse. This is because, according to the legal concept, the provision for appointing one of the “sons” on the compulsory portion would only come into effect if the stepfather had died first and the mother of the brothers had been the last to die. In this case, there would be a statutory right to a compulsory portion, which ensures that brother 2 will share in the estate, namely with half of the statutory portion of the inheritance. This is ¼.

If, on the other hand, as is the case here, the mother is predeceased, then the problem is that the disinherited son is ultimately faced with a question of conscience, either having to break the will of the testator not to burden the survivor with claims to a compulsory portion, or running the risk of to end up empty-handed, as is also the view of brother 1 now.

The will is therefore “out of round”, so that the will of the testator by way of interpretation according to §§ 133, 157 BGB must be determined. It is therefore necessary to ask what the spouses actually wanted, or what they would have wanted if they had considered that it was not the wife who died last, but the husband and therefore, due to the lack of a parent-child relationship, no statutory entitlement to a compulsory portion for son 2 arises?

Aimed at protecting the survivor on the 1st inheritance

In any case, the spouses wanted the survivor not to have to worry about claims to a compulsory portion in the first inheritance. This is also in view of the fact that the estate includes a property that may have had to be sold in order to satisfy the compulsory portion claims.

In the case of a second inheritance, the disinherited son should be worse off, but not go away empty-handed

For the second inheritance, they wanted to give preference to son 1 out of gratitude for loyal service. That’s why they made him the sole heir. However, they did not want son 2 to be in a quandary, having to take action against the stepfather so as not to end up empty-handed, if the mother had previously died, but they wanted him to be treated as a person entitled to a compulsory portion in terms of value, i.e. no heir status receives, but only a monetary claim against the estate. Such a result can also be applied to the regulation in § 2304 BGB support. It is regulated there that, in case of doubt, a compulsory portion should not be considered as an appointment of an heir. Conversely, however, this also means that in case of doubt, the assignment of a compulsory portion is to be regarded as a legacy. This is always the case if, for the aforementioned reasons, the appointed person does not have a right to a compulsory portion because he or she has previously declared a notarial waiver of the compulsory portion or is not a descendant of the testator and therefore does not belong to the group of those legally entitled to a compulsory portion. The amount of the monetary claim results in turn from the reference to the right to a compulsory portion, so that the provision corresponds to a monetary legacy of ¼ of the value of the estate. The spouses could just as easily have stated that son 2 would receive a legacy of ¼ of the value of the estate. With such a regulation, which everyone could understand, they could have avoided a rift between the brothers.

Annotation:
Do you still talk to each other or have you already inherited? This saying makes it clear that not only does friendship end when money is known, but also when it comes to inheritance, especially among siblings, there is often a tough fight for the estate. Unfortunately, very often it is also completely nonsensical, because the parents have provoked arguments through incorrect or missing regulations instead of avoiding arguments.

The case makes it clear that no will should be drawn up without qualified advice on inheritance law. The fact that the testators created a Berlin will indicates that they have little legal knowledge, i.e. that something was found on the Internet or in a printed publication that supposedly fits, but which, as the case described shows, ultimately leads to the relationship of the brothers will not necessarily improve. If the parents had instead clearly formulated that son 2 should receive ¼ of the estate in terms of value, then there would have been no room for fraternal disputes. So if you want to do something good for your family, get advice before making a will. The associated costs are rather negligible compared to costly disputes between children. And, if you think about it correctly, the costs are not paid by you, but by the heirs…

Do you also have a dispute about the compulsory portion or a legacy? We are happy to support you, nationwide.