What is meant by an additional mandatory part?
The additional compulsory portion is standardised in Section 2305 BGB. If a person entitled to a compulsory portion is left an inheritance share that is less than half of the statutory inheritance share, they can demand from the co-heirs that the value of the missing portion be granted to them as a compulsory portion at half of the statutory inheritance share.
In contrast to Section 2306, which specifies that the heir entitled to a compulsory portion is only entitled to the compulsory portion, Section 2305 stipulates that an unrestricted and unencumbered inheritance share must have been bequeathed to the person entitled to a compulsory portion. Pursuant to Section 2306 (1), the heir entitled to a compulsory portion only has the right to choose if certain restrictions and encumbrances have been imposed on the estate.
A person entitled to a compulsory portion who has been left an unencumbered inheritance that falls short of the compulsory portion does not have the option of rejecting it in order to claim the full compulsory portion instead. There is only one exception to this rule, and that is for the surviving spouse or partner.
Furthermore, the entitlement to the additional compulsory portion requires that the inheritance share allocated to the beneficiary of the compulsory portion is less than half of the statutory inheritance share. If the heir has been left exactly half of the statutory inheritance share, he or she is not entitled to either the compulsory portion or the additional compulsory portion.
In this context, the question arises as to how the ratio between the inheritance share granted and half of the statutory inheritance share is determined. Generally, the quota theory is used to compare the inheritance quota with which the beneficiary of the compulsory portion was provided with half of the statutory inheritance quota.
In addition, the heir must have accepted the inheritance in order to be able to claim the additional compulsory portion.
Example:The estate assets totalled 1 million euros. In his will, the testator only bequeathed 10,000 euros to his heir entitled to a compulsory portion. The statutory inheritance share of the heir entitled to a compulsory portion is ½. In addition to his or her inheritance share, the heir can demand €240,000 from the co-heirs as an additional compulsory portion in accordance with Section 2305 BGB.
What is the difference between the additional compulsory portion and the supplement to the compulsory portion?
In practice, the additional compulsory portion is often confused with the claim to a supplementary compulsory portion.
While the additional compulsory portion claim protects the heir entitled to a compulsory portion against testamentary dispositions by the testator, the supplementary compulsory portion claim protects the beneficiary of the compulsory portion against testamentary dispositions by the testator. The heir is entitled to the additional compulsory portion if the testator's last will and testament allocates him or her too small a share of the estate. The claim to a supplementary compulsory portion, on the other hand, is relevant if the testator disinherits the person entitled to a compulsory portion and reduces their assets through gifts during their lifetime.