Although the law does not give children-in-law the right to inherit, they can still benefit in certain circumstances. An overview of rights, exclusions and typical pitfalls.
According to the law, children-in-law are not entitled to inherit
Children-in-law are not considered legal heirs. This results from the structure of the legal succession in §§ 1924-1936 BGB, which only takes relatives and the spouse into account. Children-in-law are neither descendants (§ 1924 BGB) nor parents or grandparents (§§ 1925, 1926 BGB). There is also no right to a compulsory share, as Section 2303 of the German Civil Code (BGB) only protects descendants, parents and spouses.
Indirect paths to inheritance
Legally, a child-in-law is left out, but can have an indirect share in the assets of the parents-in-law. If one’s own child dies, their assets – including the inheritance – pass to their spouse (§ 1931 BGB in conjunction with § 1924 BGB). Rose & Partner describes this scenario as a common cause of children-in-law “gaining indirect access to the estate”. If one’s own child predeceased, the grandchildren inherit instead (Section 1924 Paragraph 3 BGB). The child-in-law remains formally excluded, but can participate in financial decisions as the legal representative of underage grandchildren. In a rare property regime such as community of property (§§ 1415 ff. BGB), the spouse can also dispose of their own child’s assets, including inherited values - Rose & Partner also points out this.
How children-in-law can be used or excluded
If a child-in-law is to be expressly considered, this can only be done through a will (§ 1937 BGB). Without this regulation, no claim arises. For tax purposes, the low exemption amount of 20,000 euros applies, which is regulated in the ErbStG, which suggests that larger assets should be structured through gifts within the family. However, caution is advised: a mandatory onward gift can be viewed as an impermissible chain gift.
Conversely, parents can specifically exclude a child-in-law. Rose & Partner particularly recommends pre- and post-inheritance (§§ 2100 ff. BGB). Your own child becomes the first heir, your grandchildren the next heir; The child’s spouse does not receive his or her own claim to the in-laws’ assets. Rules regarding disruption of the basis of the transaction also apply to gifts to children-in-law (§ 313 BGB). The Federal Court of Justice has ruled that gifts to the child-in-law can, under certain circumstances, be adjusted or reclaimed proportionately if the marriage fails and the basis for the gift no longer applies.
How a divorce affects testamentary gifts
§ 2077 BGB automatically declares last wills in favor of the spouse in the event of divorce to be ineffective. However, this regulation only applies to spouses and fiancées. This is also confirmed by a BGH ruling, according to which “Section 2077 of the German Civil Code (BGB) is not to be applied accordingly to the inheritance of children-in-law”. This means that the inheritance of a child-in-law remains in effect even after the divorce, as long as the testator does not change it. In practice, this means: Anyone who has a child-in-law in their will and wants to revise this decision after the divorce must actively revoke or redesign the will (§ 2253 BGB). There is no automatic effect.
Editorial team finanzen.net