Is it still possible to change or revoke a will after the death of a spouse?
In principle, the testator can revoke, amend or supplement their will at any time. They do not require the consent of the persons named in the will or the consent of their spouse. However, something different may apply if an inheritance contract has been concluded or if spouses have drawn up a joint will. In this case, the testamentary dispositions may be binding under certain circumstances.
Can inheritance contracts be revoked?
Not every disposition in an inheritance contract must be binding. Initially, only so-called „contractual dispositions“ in an inheritance contract are binding, Section 2278 BGB. Such contractual dispositions can only be legacies, bequests or conditions. Other provisions, e.g. the arrangement of the execution of a will, are not contractual and are therefore not binding. Whether the contracting parties intended a contractual disposition and thus a binding effect is to be inferred from the inheritance contract in case of doubt through interpretation. Determining whether a disposition in an inheritance contract is in accordance with the contract and therefore binding is all the more important as Section 2299 BGB also expressly permits the inclusion of unilateral - and therefore non-binding - dispositions. In individual cases, an inheritance contract can therefore contain both binding - contractual - and non-binding - unilateral - dispositions.
An inheritance contract differs formally from a simple will in that the parties to the inheritance contract must have their inheritance contract notarised by a notary. An inheritance contract that has only been agreed privately is invalid and void. It has no legal effect. As a rule, the notary will also ensure that it is expressly stipulated which dispositions in the inheritance contract are contractual and therefore binding and which are not.
What applies to a spouse's will?
A binding effect similar to that of an inheritance contract can also be achieved through a joint spouse's will.
Spouses have the option of making a joint will. This is done in such a way that one spouse writes the will and both spouses sign the text. Similar to an inheritance contract, a spouse's will can have a binding effect. If both spouses are still alive, either spouse can revoke their dispositions in the spouse's will. However, the revocation must be notarised and a copy of the notarial deed must be delivered to the other spouse. This ensures that the other spouse is informed of the amendment or revocation of the dispositions of one spouse and can react to this by amending their own dispositions if necessary.
After the death of a spouse, the surviving spouse can no longer revoke so-called reciprocal dispositions in a joint spouse's will. He or she is then bound. Should the surviving spouse nevertheless make other testamentary dispositions, for example appointing other persons as their heirs, these dispositions are invalid vis-à-vis the original beneficiary.
This raises the question of which testamentary dispositions in a joint spouse's will are subject to change. Dispositions that can be assumed not to have been made without the other person's disposition are considered to be reciprocal. If it is not possible to determine by interpreting the will whether the spouses intended the will to be mutually relevant, the law provides a rule in Section 2270 (2) BGB.
Pursuant to Section 2270 (2) of the German Civil Code (BGB), in case of doubt, reciprocity should be assumed if the spouses make a gift to each other or if a gift is made to one spouse by the other and a disposition is made in favour of a person who is related to the other spouse or otherwise close to him or her in the event of the survival of the beneficiary.
The Berlin will is the classic variant in which, in case of doubt, several reciprocal dispositions are assumed. For example, the mutual appointment of the spouses as sole heirs is reciprocal in this sense. However, the appointment of the other spouse as sole heir to the disposition of the other spouse, according to which the joint children or in any case the children are the final heirs, is also reciprocal.