If you want to get a divorce, of course, you think about it a lot, especially if you have children together. One aspect that is often lost sight of is inheritance law. After all, divorce has a significant impact on succession. What exactly applies here, we want to explain in the following.
Does the spouse always inherit?
In principle, the law always gives the spouse a compulsory portion, even if there is no will. Only in the case of a will, also known as a will, the spouse can be excluded from the inheritance through disinheritance.
The succession in the ongoing divorce proceedings
The legal inheritance law for the spouse ends with the divorce. However, it should be noted here that the right of inheritance does not expire after the divorce proceedings have been concluded. The spouse no longer inherits if:
- the testator has applied for the divorce himself to the local court through the lawyer or has consented to it (in writing or orally to the court),
- divorce proceedings are pending at the time of death,
- the conditions for the divorce were met.
One of the prerequisites for a divorce is that a married couple has been separated for a year and that the marriage is considered broken. If a married couple has been separated from one another for more than three years, the court automatically assumes a breakdown. Should a spouse die during the divorce proceedings, the judge must assess the breakdown of the marriage in light of all other known circumstances.
The term pending means that one spouse’s petition for divorce has been served on the other.
If these requirements are met, the spouse’s right of inheritance can already be waived, even if the divorce has not yet been finally carried out. In this case, it is sufficient for the testator to state that he no longer wants to hold onto the marriage or that the aforementioned requirements for the divorce are met. In this case, the spouse’s right to a compulsory portion also expires.
Requirements for inheritance in divorce proceedings
Only if a will in favor of the spouse is available does the inheritance law not expire despite divorce or divorce proceedings. In this case, a will must have been drawn up during or before the marriage, after which the spouse was named as heir. In this case, case law assumes that the testator wants to protect the spouse regardless of the relationship status. Such an interpretation can only be prevented if the testator writes a new will with the separation, which replaces the old one and thus defines a new heir.
The inheritance in the case of joint minor children
If a married couple has minor children together, it can happen – despite the divorce and the expired right of inheritance of the ex-partner – that the ex-partner receives access to the inheritance as part of the property management for the joint children. This is also the case if a jointly entitled child dies before the death of the parent and has no offspring entitled to inherit. Even then, the portion of the inheritance falls to the divorced spouse. To prevent this from happening, it is advisable to draw up a so-called divorce will in which all special cases can be excluded.
Special considerations in connection with the divorce
In order to exclude the divorced spouse’s right of inheritance, it is first of all advisable to draw up a new will with individual regulations. It is also conceivable to apply for divorce yourself or to actively consent to the divorce so that the other spouse loses his right of inheritance. Finally, it could happen that the spouse withdraws the application for divorce prematurely in order to prevent the loss of the right of inheritance. However, if the spouse’s protection is expressly desired in the event of illness and no will is available, it is advisable to withdraw the application for divorce.
Family and inheritance law offer a few points of overlap in the area of “divorce”. Only a lawyer can offer you a tailor-made solution for your individual life situation with regard to inheritance. Our specialist lawyer for family law, Mr. Oliver Abel, is an expert on all questions and concerns regarding divorce and inheritance.
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However, we would like to expressly point out that we do not offer free advice. Due to the large number of inquiries from the Internet, we cannot answer questions about this article free of charge
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