What is meant by the compulsory portion?
If the deceased excludes their descendants or spouse from intestate succession through a will or other disposition of property upon death, these relatives are still entitled to a minimum financial share of the estate. However, the compulsory portion is not a „small inheritance share“. Nor does the person entitled to a compulsory portion become an heir with a smaller inheritance share. Rather, the person entitled to a compulsory portion is entitled to a monetary payment from the heir or heirs. Unlike the heirs, the person entitled to a compulsory portion cannot access the estate assets. They must turn to the heirs and claim their compulsory portion. If they do not respond and refuse to pay the compulsory portion, the person entitled to the compulsory portion may have to take legal action against the heirs. The person entitled to a compulsory portion cannot demand payment from other parties, in particular banks. Nor can they demand that a specific item be given to them instead of a sum of money. On the other hand, the heirs cannot demand that the person entitled to a compulsory portion be satisfied with an item of the estate instead of a sum of money, even if this is worth more than the sum of money to which the person entitled to a compulsory portion is entitled.
How high is the compulsory portion?
The amount of the claim to the compulsory portion depends on the value of the deceased's assets. The first thing that is relatively easy to determine is the compulsory portion, i.e. the percentage by which the compulsory portion is calculated on the basis of the estate assets. The compulsory portion is half of the statutory inheritance share. Example: If the widowed deceased has three children and only appoints one child as his heir, the other two children, who have been disinherited in this respect, can claim the compulsory portion. If the statutory succession had occurred, the three children would have inherited the deceased in equal shares, i.e. 1/3 each. In this case, the statutory inheritance share would therefore be 1/3. The compulsory portion is half of the statutory inheritance share, i.e. 1/6 each in the example case.
Who is entitled to the compulsory portion?
The deceased's descendants (children and grandchildren, great-grandchildren, etc.), the surviving spouse and - if the deceased had no descendants - the deceased's parents are entitled to a compulsory portion. The grandchildren of the deceased are only entitled to a compulsory portion if the parent descended from the deceased has predeceased the deceased (the deceased's child dies leaving children of his/her own before his/her parent). Siblings of the deceased are not entitled to a compulsory portion, even if they would be entitled to inherit according to intestate succession, i.e. if the deceased has no descendants and their parents or one of their parents have predeceased them. The prerequisite for the compulsory portion is always that the named persons have been excluded from the statutory succession, i.e. disinherited.
If the descendants, spouse or parents do not inherit from the deceased for any other reason, for example because they have disclaimed the inheritance, they are not entitled to claim the compulsory portion. It would therefore be fundamentally wrong to waive the inheritance with the intention of then claiming the compulsory portion. However, legal provisions that expressly assign the right to the compulsory portion to the person concerned even if the inheritance is disclaimed may provide otherwise.
Who has to pay the compulsory portion?
In principle, the heirs owe the fulfilment of the compulsory portion claim. If there are several heirs, the person entitled to the compulsory portion can choose whether to claim from all the co-heirs or just one. The co-heirs are liable to the beneficiary of the compulsory portion as joint and several debtors, i.e. each of them is liable to the beneficiary of the compulsory portion for the full amount. However, the person entitled to the compulsory portion can of course only claim the sum once. If the person entitled to the compulsory portion only claims the sum from one co-heir or if only one co-heir fulfils the full claim of the person entitled to the compulsory portion, he or she can demand compensation from the other co-heirs in accordance with the inheritance quotas.
What do I have to do to receive the compulsory portion?
The compulsory portion is not automatically paid out to the beneficiary or beneficiaries. There is also no obligation for the heirs to contact the beneficiaries of the compulsory portion. The beneficiaries are also not informed by the court or any other authority. They must therefore take care of this themselves and assert their claim against the heirs. It should be noted that the claim to the compulsory portion is subject to the statute of limitations. The entitled person must even calculate the compulsory portion themselves and, if necessary, sue for it in order to suspend the limitation period. The probate court is not responsible for such an action. The action must often be brought before the district court due to the expected amount of the compulsory portion. In this respect, there is an obligation to have a lawyer, i.e. the person entitled to the compulsory portion cannot bring the action before the court themselves, but must do so through a lawyer. This must be observed in particular if the statute of limitations is imminent.
What information can I request from the heir?
Pursuant to Section 2314 BGB, the beneficiary of the compulsory portion has a right to information from the heirs about the existence of the estate. The existing obligation to provide information pursuant to Section 2314 para. 1 sentence 1 BGB extends not only to the actual estate, but also to the so-called fictitious estate at the request of the beneficiary of the compulsory portion. The fictitious estate includes all gifts subject to offsetting and equalisation. Not only the gifts expressly designated as gifts must be disclosed, but also other gifts where there is a suspicion of a mixed gift (OLG Frankfurt am Main, judgement of 24 July 2012 - Ref. 11 U 117/10).
To this end, the heir must submit a written inventory of the deceased person's estate and its value. In particular, the inventory must include the items actually present at the time of the inheritance (real estate, bank, securities and custody account balances, company shares, motor vehicles, jewellery, household effects), all liabilities of the estate, all gifts, including gifts of the deceased that are mandatory and gifts of decency, as well as all marriage-related gifts of the deceased to his or her spouse that could be subject to a compulsory portion supplement pursuant to Sections 2325, 2329 BGB (German Civil Code), all gifts that could be subject to compulsory portion supplementation pursuant to Sections 2050 ff, 2316, the matrimonial property regime in which the deceased lived, all contracts in favour of third parties in the event of death and their beneficiaries, all life insurance contracts of the deceased, also insofar as you or third parties are appointed as beneficiaries, the matrimonial property regime in which the deceased lived. This may also include gifts made more than 10 years before the death, for example gifts to the spouse or gifts of items to which the deceased reserved usufruct.
In addition to the right to information, the beneficiary of the compulsory portion also has a right to a valuation. In particular with regard to real estate or any company shares of the deceased, the beneficiary of the compulsory portion can demand that the heir obtains an expert opinion on the value.