What is a Berlin will?
A Berlin will is a spouse's will in which the joint children of the spouses do not become heirs of the first to die. The assets of the first to die are initially transferred in full to the other spouse. The assets bequeathed to the other spouse are not separated. The children therefore only become heirs of the last deceased in the second succession and not also heirs of the first deceased. This also has tax implications, as the assets of the first deceased may be subject to inheritance tax twice.
Can a Berlin will be changed?
The spouses can jointly amend the will at any time. However, a unilateral change to reciprocal dispositions during the lifetime of the other spouse is only possible by delivering a notarised declaration of revocation (Section 2271 BGB, 2296 BGB). After the death of the other spouse, it is no longer possible to revoke reciprocal dispositions unless the surviving spouse was authorised to do so in the will.
The joint children's legacies are to be regarded as reciprocal. This means that the surviving spouse is bound by the will after the death of the partner and can no longer change it. You must therefore decide whether the surviving spouse should be free to change or revoke the children's legacies after the death of the other spouse. It is also conceivable to grant the spouse only the right to change the inheritance quotas of the joint children in favour of other descendants (children, grandchildren).
Do the children receive nothing in a Berlin will?
The mutual appointment of the spouses as sole heirs of the first deceased also means that the children are disinherited with regard to the first inheritance. However, the Berlin will does not lead to a cancellation of the right to a compulsory portion. The children can therefore still demand the compulsory portion from the surviving spouse after the death of the first deceased. The person entitled to a compulsory portion does not become an heir. They only have a monetary claim against the heir.
In order to prevent the children from claiming the compulsory portion, a „compulsory portion penalty clause“ is sometimes included in the will, according to which a descendant who claims the compulsory portion on the death of the first to die only receives the compulsory portion on the death of the last to die, i.e. less than their full inheritance share. This is intended to prevent the descendant from claiming the compulsory portion.
Does the Berlin will also apply after divorce?
The joint will becomes invalid if the marriage is divorced before the death of one of the spouses. If the conditions for divorce were met at the time of the testator's death and the testator had requested or agreed to the divorce, this is equivalent to a legally binding dissolution of the marriage. If the divorce was requested by the surviving spouse alone and the divorce proceedings have not yet been finalised at the time of the testator's death, the consequences of the ineffectiveness of a disposition by the deceased spouse do not apply.