Legal Succession (gesetzliche Erbfolge)
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legal succession - gesetzliche Erbfolge
In absence of a disposition of property upon death, who inherits and how much?
If there is no will or contract of inheritance, the rules of legal succession (gesetzliche Erbfolge) apply.
Under German law of succession, only relatives are classed as heirs, i.e. people with the same parents, grandparents or great-grandparents as the testator, as well as people who share more remote common ancestors with the testator. According to this definition, relations by marriage are not considered to be related to the testator and therefore are excluded from legal succession, e.g. mother-in-law, son-in-law, stepfather, stepdaughter, aunt by marriage, uncle by marriage, etc.; this is because they do not share any common ancestors with the testator.
The family relationship can also result from adoption (as a child), as this process creates under law fully-fledged family relationship between the child and the adopter as well as the latter's relatives, along with all the associated rights and obligations.
Consequently, adopted children generally have the same rights as biological children (special conditions may apply if ‘children’ over the age of majority are adopted).
Spouses are an exception to the principle of relative-only inheritance.
Although they are not related to one another and so do not share any common ancestors, they still have a right of their own to an inheritance from their spouse. If the spouses are divorced, there is no right to an inheritance. Under certain conditions, this also applies to spouses who are not yet divorced but live separately.
Under the law of succession, registered partners (eingetragene Lebenspartner) have the same inheritance rights as spouses.
By contrast, there is no legal right to an inheritance for other forms of cohabitation.
By contrast, there is no legal right to an inheritance for other forms of cohabitation.
The law of succession for relatives: Not all relatives have equal inheritance rights.
The law divides them up into heirs of various different degrees:
1st degree
Heirs of the 1st degree only include the descendants of the deceased, i.e. the children, grandchildren, great-grandchildren, etc.
Extra-marital children are the legal heirs of their mothers and fathers and of their respective relatives. An exception applies to cases of inheritance in which the testator died before 29 May 2009, if the extramarital child was born before 1 July 1949.
Provided someone can be found who belongs to this group of very close relatives, all the relatives that are more distant receive nothing and have no share in the inheritance.
Example: The testator has one daughter and numerous nephews and nieces. The nephews and nieces don´t inherit.
The children's children (i.e. grandchildren, great-grandchildren) can only inherit if their parents have already died or have themselves waived the inheritance for their children.
2nd degree
Heirs of the 2nd degree are the parents of the deceased along with their children and children's children, i.e. the siblings, nephews and nieces of the testator. Once again, children of the parents of the testator only inherit if the parents of the testator are deceased. They then inherit the portion due to their deceased father or deceased mother.
Relatives of the 2nd degree can only inherit if there are no relatives of the 1st degree.
Example: The testator is survived by a niece and a nephew. The sisters and parents of the testator have already passed away. The niece and the nephew thus each inherit one half of the estate.
3rd and subsequent degrees
The 3rd degree category encompasses the grandparents plus their children and children's children (aunt, uncle, cousin, etc.), while the 4th degree covers the great-grandparents plus their children and children's children, and so on. Legal succession is essentially based on the same rules as for the aforementioned degrees. However, as of the 4th degree, if the offspring of the grandparents have already passed away, it is no longer the descendants of those offspring that are next in line; rather, the person(s) who is/are the closest relative(s) now becomes the sole heir(s) (at this point there is a switch from the parental system of succession [which involves working down each line (parentel) descended from an ancestor until an heir is found] to the degree of relationship system [which involves identifying the closest relative based on degrees of kinship]).
The following always applies: only one relative of the previous degree needs to be alive in order for all the possible heirs of the subsequent degree to be excluded.
Spouses - Ehegattenerbrecht
Spouses and registered partners
Regardless of the respective matrimonial property regime that applied, the surviving wife, husband or registered partner are classed as legal heirs and are entitled to ¼ of the estate along with any descendants and to ½ of the estate along with any relatives of the 2nd degree (i.e. parents, siblings, nephews or nieces of the testator), as well as any grandparents.
If the spouses lived under the ‘property regime of community of accrued gains’ (which is the default regime, unless the spouses agreed to a different property regime as part of a pre-nuptial or post-nuptial agreement), the aforementioned portion increases by ¼. The same applies to registered partners.
If there are no relatives of the 1st or 2nd degree and no grandparents either, the surviving spouse/partner receives the entire inheritance.
Example: The testator is survived by his wife (with whom he lived under the property regime of community of joint accrued gains) and by his parents. The wife receives ¾ (½ + ¼) and the parents - as heirs of the 2nd degree - each receive ⅛ of the estate.
In addition, where the other heirs are relatives of the 2nd degree, as here, or grandparents, the wife is entitled to what is known in German as the ‘Großer Voraus’, which is a preferential right that in most cases covers all household effects and wedding presents (where the other heirs are relatives of the 1st degree, a surviving spouse inheriting as a legal heir is entitled to these effects only in so far as he or she needs them in order to run a proper household).
