Advance of the spouse
If a decedent dies, the quotas of the heirs and the assets belonging to the estate must be determined. For this purpose, both the active and the passive assets of the decedent are determined.
Under certain circumstances, the decedent's assets may already be reduced by certain estate items in advance.
What is an advance?
The purpose of an advance is to provide the surviving spouse with the corollary effect of the marital community. According to the normative purpose, the death of one spouse should not lead to the surviving spouse having to radically change his or her external circumstances. The primary concern is not only to protect the spouse's economic existence, but also to avoid encroachment on the spouse's emotional and personal sphere.
The advance of the spouse is legally standardized in § 1932 BGB. Pursuant to Section 1932 (1) of the Civil Code, in addition to the share of the inheritance, the surviving spouse is entitled to the objects belonging to the marital household, insofar as they are not accessories to real property, and the wedding gifts as an advance if he or she is the legal heir alongside relatives of the second order or grandparents. If the surviving spouse is next to relatives of the first order, he or she is entitled to these items only to the extent that he or she needs them to run an adequate household.
What are the requirements for the claim?
The surviving spouse must be the decedent's legal heir. On the other hand, the claim does not exist if the marriage has been dissolved, there is a waiver of inheritance or a declaration of unworthiness to inherit. An analogous application of § 1932 of the Civil Code to non-marital cohabitation is out of the question. The matrimonial property regime agreed by the spouses is irrelevant to the right to bequeath.
The advance claim does not accrue if the spouse is disinherited. Even if the testator has named the spouse as heir by means of a testamentary disposition, the surviving spouse is generally not entitled to a legacy, since the testator has then finally determined the share of the estate by assessing the share of the inheritance that has been granted.
What is included in the advance?
In terms of content, the claim to an advance includes all items belonging to the marital household. This includes items that are typically considered to be part of the joint household, even if they were only used by one spouse. Typical items include in particular: Furniture, tableware, bed and table linen, kitchen appliances, washing machine, radio, television, car, etc.
Explicitly excluded from the law are property accessories and house properties.