If there is no will, the statutory succession applies in the event of death. Married couples don’t automatically get everything. Inheritance disputes are not uncommon. What exactly are the regulations?
When Michaela Porten-Biwer has to explain the pitfalls of legal succession, she likes to use a fictitious case. “In my daughter’s class, I played through it using Harry Potter as an example,” says the lawyer from Trier. Had Harry died in the final battle against his nemesis Voldemort, his fortune would have passed – without a will – to his next of kin: his hated aunt.
“Then everyone said: No, Harry wouldn’t want that,” says Porten-Biwer. The theoretical example makes it clear: “Everyone has to ask themselves whether the legal succession is sufficient for oneself.”
In Germany, this is regulated in the Civil Code. It always applies if there is no will. “Last but not least, the specifications have a regulatory function,” explains Stephanie Herzog from the German Lawyers’ Association. This ensures that the inheritance is processed properly – by the next of kin and not by the state.
“If there is no will, the descendants, i.e. the children and grandchildren of the deceased, inherit before the parents, siblings and grandparents. The spouse also inherits,” says Tamara Große-Boymann, a specialist in inheritance law from Brandenburg an der Havel .
“This is one of the biggest misconceptions: most people think that spouses automatically inherit alone.” How high the spouse’s share is depends, for example, on the matrimonial property regime in which they live. In the case of the statutory matrimonial property regime of the community of accrued gains – i.e. a marriage without a marriage contract – the survivor regularly inherits half, the other half is inherited by the children or grandchildren.
If the children have already died, the inheritance passes to their children, explains Herzog. Her case study: A person has no spouse and leaves behind a child. A second child has already died, but fathered two children himself. “Here, the first descendant inherits half and the two grandchildren each inherit a quarter,” says Herzog.
If the deceased had no children, the parents of the deceased are entitled to inherit. If the parents have already died, their other descendants have a claim, i.e. the siblings of the deceased person. Even nieces and nephews could be raised, explains Herzog.
In the case of several heirs, a community of heirs is created, explains Große-Boymann. This is often problematic. “Especially when a property has been inherited, it often becomes difficult,” says Große-Boymann. For example, when two spouses own a family home equally and one of them dies. Unless there is a different will, the deceased’s half of the house is divided among the heirs.
The surviving spouse then receives 50 percent and thus owns three quarters of the house and land. The other quarter goes to the children – or other direct relatives – of the deceased. “If the children claim it, the parent would actually have to pay them rent for their own house,” says Große-Boymann.
If no heir is found from the family, the assets go to the state. “Normally, the federal state inherits. If you have lived abroad or no place of residence can be determined, the federal government inherits,” says Stephanie Herzog.
However, there are realities of life that are not covered here. “What you have to be clear about: the original version of the Civil Code dates from 1900,” says attorney Porten-Biwer. “It knows no patchwork family and no unmarried partners.” If you want to consider stepchildren, you have to include them in a will. They are excluded from the legal succession as well as people with whom the deceased lived unmarried for decades.
The case of divorced spouses can also be complicated. “If, for example, a mother and daughter die in a car accident in quick succession and the mother hasn’t made a will, the daughter’s biological father is entitled to inherit,” explains Porten-Biwer. “I have to ask myself: do I want that?” In this case, it can make sense to name a substitute heir in a will.
Every now and then, illegitimate children come into play that the rest of the family didn’t know about. “But if the child can prove that the deceased is a biological parent, it is entitled to inherit,” says Stephanie Herzog from the Lawyers’ Association. The submission of the birth certificate alone is not sufficient as proof. Rather, paternity must be recognized or established by a court, which does not happen in the inheritance certificate procedure itself.
Adopted children are treated the same as biological children. “Anyone who was adopted as a minor only has a claim to the inheritance of their ‘new’ parents,” explains Herzog.
Sometimes adults can also be adopted. They are then – in the case of a so-called weak adult adoption – entitled to inherit in their previous and in the new family. Children from same-sex partnerships have a claim against the people who are listed as parents in their birth certificate.
(This article was first published on Tuesday, January 24, 2023.)
