Disinheriting children sounds harsh – but it is sometimes well thought out. But anyone who takes this step should proceed legally wisely and be aware of possible pitfalls.
A will is mandatory – otherwise legal succession applies
Anyone who wants to disinherit a child must draw up a valid will or an inheritance contract. Without such a document, legal succession automatically comes into force – and children inherit regardless of personal reasons, as the Koblenz Chamber of Notaries explains in its brochure on “Will & Compulsory Portion”. In the will, a testator can either explicitly state that a child will receive nothing or simply not mention it. Formulations or justifications are not legally necessary.
Children receive a compulsory share – usually 50 percent of the statutory share of the inheritance
Even if a child is formally disinherited, the right to the compulsory share remains. This amounts to half of the share of the inheritance to which the child is legally entitled – as a rule, 50 percent if the child were the sole legal heir, as it goes on to say. Example: With an estate of 100,000 euros, the child receives at least 50,000 euros in compulsory portion if there are no other heirs. If there is another heir alive, such as the deceased’s wife or another child, it would be 25,000 euros. As the Chamber of Notaries further explains, grandchildren are entitled to a compulsory share if their parent predeceased them.
Waiver and withdrawal of compulsory portion – exceptions with pitfalls
There are ways to deprive a child of their compulsory share – one option is to waive their compulsory share. The child waives the claim during their lifetime through a notary, usually in return for a severance payment, as inheritance law guide explains. However, the waiver must be clearly formulated in the contract and certified by a notary.
Another option is the strict withdrawal of the compulsory share (§ 2333 BGB): Only in the case of serious misconduct – such as attempted murder, significant conviction or repeated breach of maintenance obligations – can the compulsory share be withdrawn against explicit justification, as it goes on to say. The reasons for the withdrawal must be clearly stated in the will so that they can stand up in court in an emergency.
Organize your assets cleverly: donations, renunciations, etc.
One way to reduce the compulsory portion is to make targeted donations during your lifetime. Such amounts are taken into account when calculating the compulsory portion, but decrease by 10 percent every year – after ten years they disappear completely. Marriage or adoption can also lower the compulsory share entitlement, because more entitled people reduce the individual share.
A care or needy will can also make sense – for example if a child receives state benefits and an inheritance would jeopardize their claim, as an article by notar.de explains. As a result, more money stays in the family circle and your own needs remain secure.
Take action: claim a compulsory portion – observe the deadline
A person entitled to a compulsory portion must take action in good time if he wants to assert his claims in court: According to Section 195 of the German Civil Code (BGB), the claim expires after three years; The period begins at the end of the year in which the beneficiary became aware of the inheritance, the disposition on account of death and the identity of the debtor (Section 199 Para. 1 BGB) – often after notification from the probate court. Many disinherited people do not know about their claim or shy away from a dispute – although enforcement can be financially significant.
The bottom line is that smart estate planning not only protects assets, but above all family peace.
D. Maier / editorial team finanzen.net