Additional compulsory share
What is meant by an additional compulsory share?
The additional compulsory share is regulated in § 2305 of the German Civil Code (BGB). According to this provision, a compulsory heir who has been bequeathed an inheritance portion that is less than half of the statutory share can demand from the co-heirs that the value of the missing part be granted to them as a compulsory share, amounting to half of the statutory share.
In contrast to § 2306, which specifies that the compulsory heir is only entitled to the compulsory share, according to § 2305, an unencumbered and unrestricted inheritance portion must have been inherited by the compulsory heir. According to § 2306 paragraph 1, the compulsory heir designated as the heir only has a choice if certain restrictions and encumbrances have been imposed on the estate.
A compulsory heir who has inherited an unencumbered inheritance portion that falls short of the compulsory share cannot decline it to claim the full compulsory share instead, with one exception: the surviving spouse or registered partner.
Furthermore, the claim for the additional compulsory share requires that the inheritance portion allocated to the compulsory heir is less than half of the statutory share. If the heir has been bequeathed exactly half of the statutory share, they have no entitlement to either the compulsory share or the additional compulsory share.
In this context, the question arises as to how the relationship between the bequeathed inheritance portion and half of the statutory share is determined. Generally, the quota theory is used to compare the inheritance quota allocated to the compulsory heir with half of the statutory inheritance quota.
Moreover, the heir must have accepted the inheritance in order to assert the additional compulsory share.
Example: The total estate value is 1 million euros. In their will, the testator bequeathed only 10,000 euros to their compulsory heir. The statutory share of the compulsory heir is ½. In addition to their inheritance portion, the heir can demand 240,000 euros as an additional compulsory share from the co-heirs, according to § 2305 of the BGB.
What is the difference between the additional compulsory share and the compulsory share supplement?
Often, the additional compulsory share is mistakenly confused with the compulsory share supplement.
While the additional compulsory share protects the compulsory heir from testamentary dispositions made by the testator, the compulsory share supplement safeguards the compulsory heir against lifetime dispositions made by the testator. The heir is entitled to the additional compulsory share if they have been bequeathed an insufficient inheritance portion in the testator's last will. The compulsory share supplement, on the other hand, is applicable when the testator has disinherited the compulsory heir and diminished their estate through lifetime gifts.