Compulsory portion - Pflichtteil
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compulsory portion
Are there restrictions on the freedom to dispose of property upon death (e.g. reserved share - Pflichtteil)?
The next of kin can be disinherited by means of a will.
However, a situation in which the surviving spouse, children and children's children or parents were to receive no inheritance at all, even though they would have been the legal heirs if the testamentary disposition had not actually existed in the first place, has always been regarded as unjust.
Due to their officially recognized and legally established acceptance of mutual responsibility, the same applies to surviving registered same-sex partners. For this reason, the law grants this narrowly defined group of people something called a ‘compulsory portion’ (Pflichtteil).
The beneficiaries of a compulsory portion are entitled to claim a monetary payment from the heir(s) that is equal to half of the legal portion.
Example: The testator is survived by her husband (with whom she lived under the property regime of community of accrued gains) [whereby each spouse retains ownership of his or her own property but the increase in the combined net worth of the spouses during the marriage is distributed equally] and a daughter. In her will, the testator named her husband as the sole heir. The estate is worth 100 000 Euro. The fraction for determining the daughter's compulsory portion is ¼ (whereas her legal portion is ½; the same as that of the husband who lived with the testator under the property regime of community of accrued gains).
To calculate the sum of money to which she is entitled, the compulsory portion fraction must be multiplied by the value of the estate at the time of inheritance.
This means that the daughter can claim a compulsory portion amounting to 25 000 Euro (¼ × 100 000 Euro) from the husband.
To calculate the sum of money to which she is entitled, the compulsory portion fraction must be multiplied by the value of the estate at the time of inheritance.
This means that the daughter can claim a compulsory portion amounting to 25 000 Euro (¼ × 100 000 Euro) from the husband.
Testators are not able to obstruct a claim to this compulsory portion by including beneficiaries of a compulsory portion in their wills but only allocating them less than half of their legal portion. In such cases, the beneficiary of the compulsory portion is entitled to a supplementary amount to bring their compulsory portion up to half the legal portion.
Example: In his will, the testator named his wife (with whom he lived under the property regime of community of accrued gains) and his daughter as heirs such that they stand to inherit ⅞ and ⅛ of his estate respectively. The estate is worth 800 000 Euro.
The fraction for determining the daughter's compulsory portion is ¼ (= 200 000 Euro). Given that she has been included in the will and so already stands to inherit 100 000 Euro (⅛ of 800 000 Euro), she is thus only entitled to a supplementary amount to cover the shortfall (100 000 Euro).
The fraction for determining the daughter's compulsory portion is ¼ (= 200 000 Euro). Given that she has been included in the will and so already stands to inherit 100 000 Euro (⅛ of 800 000 Euro), she is thus only entitled to a supplementary amount to cover the shortfall (100 000 Euro).
Compulsory portion claims must be asserted within three years of any beneficiaries of the compulsory portion becoming aware of the inheritance and of the disposition by which they are detrimentally affected, and certainly within no more than thirty years of the inheritance.
Heirs can ask for the compulsory portion claim to be deferred if immediate satisfaction of the claim would severely affect them in an unfair way. The example cited in the legislation is a scenario in which the family home would otherwise have to be sold.
Frequently Dr. Wolfgang Buerstedde assists heirs or - on the other side - the beneficiaries of a compulory portion.
