The testator's freedom to make a will is considerably restricted by the right to a compulsory portion. In addition to the right to a compulsory portion, there is also a right to a supplementary compulsory portion. Pursuant to Section 2325 (1) BGB, a claim to a supplementary compulsory portion arises if the testator reduces their assets during their lifetime by making gifts to third parties. The gifted item is added to the estate. The purpose of the claim to a supplementary compulsory portion is to prevent deliberate reductions in assets during the testator's lifetime in order to reduce the amount of the compulsory portion claims.
Example:
Two children of a single testator are disinherited by a will. An environmental protection organisation is appointed as the sole heir. The testator's assets totalled 500,000 euros before his death. A few months before his death, the testator gave away 250,000 euros to the neighbouring animal shelter. The value of the estate at the time of death was therefore only 250,000 euros.
The two children are entitled to ¼ of the value of the estate after their disinheritance. They would therefore inherit 62,500 euros each from the real assets. However, the 250,000 euros given away are notionally added to the value of the estate, so that it totals 500,000 euros. If the notional compulsory portion is now calculated, i.e. ¼ of EUR 500,000, the heirs are each entitled to EUR 125,000.
This would leave the environmental protection organisation as the sole heir with nothing of the inherited assets.
Who is the claim to a supplementary compulsory portion directed against?
The claim to a supplementary compulsory portion is based on against the heir. If there are several heirs, they are jointly and severally liable.
If the estate is not sufficient to fulfil the claim to a supplementary compulsory portion, Section 2329 of the German Civil Code (BGB) allows the claim to be against the recipient to be asserted.
Who is entitled to a compulsory portion supplement?
Only heirs entitled to a compulsory portion are entitled to a supplement to the compulsory portion. This primarily includes the direct descendants, i.e. the children of the deceased. In addition, the spouse is also entitled to a compulsory portion and is therefore also entitled to a supplement to the compulsory portion.
Can an heir also demand a compulsory portion supplement?
This basically depends on how much was given to the heir in terms of value. If the heir was left more than half of the statutory inheritance share, a claim to a compulsory portion supplement is excluded.
Falls below If the portion of the inheritance granted to the heir is less than half of the statutory portion, the heir entitled to a compulsory portion is entitled to a supplement to the compulsory portion. This also applies if he or she has waived the inheritance.
Example:
The single deceased leaves behind two children and an estate worth 20,000 euros. Shortly before her death, she donated 60,000 euros to the neighbouring animal shelter.
Firstly, the two children are each entitled to 10,000 euros according to the statutory inheritance law. If the gift is added to the estate value, the compulsory portion of each child would be ((20,000 + 60,000) / 4=) 20,000 euros. In addition to their inheritance share, each child is entitled to a supplementary claim of (20,000 - 10,000=) 10,000 euros.
In which period are gifts to be taken into account?
In accordance with section 2325 (3) sentence 2 BGB, a gift is no longer recognised if ten years have passed since the gift was made. Performance of the item given away have elapsed. Within this 10-year period, the gift is recognised in full in accordance with Section 2325 (3) sentence 1 BGB within the first year prior to the inheritance and by one tenth less within each subsequent year.
Overview of the reduction of the applicable percentage:
| Date of the gift | Percentage to be credited |
| 1 year before the death of the testator | 100 % |
| 2 years before the death of the testator | 90 % |
| 3 years before the death of the testator | 80 % |
| 4 years before the death of the testator | 70 % |
| 5 years before the death of the testator | 60 % |
| 6 years before the death of the testator | 50 % |
| 7 years before the death of the testator | 40 % |
| 8 years before the death of the testator | 30 % |
| 9 years before the death of the testator | 20 % |
| 10 years before the death of the testator | 10 % |
| 11 years before the death of the testator | 0 % |
However, it is important to mention that Gifts between spouses taken into account in full and therefore the 10-year period here does not apply before the marriage is dissolved. Only then does the 10-year period also begin to run between spouses.
When does the so-called 10-year period begin?
The wording of Section 2325 (3) sentence 3 BGB expressly states that if ten years have elapsed since the gift was made, the gift will be disregarded. This basically means that it depends on the performance of the item given away.
The situation is different if the gift was made between spouses. In this case, the period only begins after dissolution of the marriage.
Is there also a right to a valuation in respect of items given as gifts?
Courts only grant the beneficiary of a compulsory portion a claim to a valuation within the meaning of Section 2314 (1) sentence 1 BGB with regard to a possible claim to a supplementary compulsory portion to a limited extent. In its decision of 9 November 1983 (case reference: IVa ZR 151/82), the Federal Court of Justice stipulated as a prerequisite that an appraisal to the detriment of the estate can only be demanded for a fee, if the beneficiary of the compulsory portion can prove that the transaction is a gift requiring supplementation.
These requirements can lead to difficulties, particularly in the case of mixed gifts. This is because the donee has also given the testator something in return. Here, this condition often has an obstructive effect.
In cases of doubt, the beneficiary of the compulsory portion must first bear the costs of the valuation themselves. This is often necessary in order to establish by means of an expert opinion that a gift has been made at all and how much it should be valued.
What is the relevant point in time for determining the value of a gift?
The relevant date for determining the value of the gift depends on what the testator has given away.
If a consumable item (e.g. money or securities) is given as a gift, the value of the item is Date of the gift authoritative.
However, if the object of the gift is a non-consumable item (e.g. a property), the value of the item is generally at the time of the inheritance decisive. If the value of the item Date of donation lower this value is used for the calculation of the claim. decisive.
How does inflation affect the value of the gift?
Today's clearly noticeable economic trends are also taken into account when valuing the gift. In the case of consumable goods, the value determined at the time of the gift is adjusted by the consumer price index at the time of death. This also applies to non-expendable assets if the value at the time of the gift was lower.
Specifically, the consumer price index is taken into account by assessing the value of the gift at the time of the gift and then dividing it by the consumer price index of the year of the gift and multiplying it by that of the year in which the deceased died.
Example:
If the mother gave her husband €500,000 as a gift in June 2016 and died in June 2022, the disinherited daughter can assert a claim to a supplementary compulsory portion. The significant increase in inflation in 2022 is taken into account in the calculation of the supplementary claim by setting the indexed value of 543,326.69 as the gift amount.
Conclusion on the supplementary compulsory portion
The supplementary compulsory portion ensures that gifts made by the deceased during their lifetime do not diminish the compulsory portion of legally entitled heirs. Gifted assets are added to the estate, either in whole or in part, depending on the year of the gift. The crucial factor here is the 10-year period within which gifts are gradually taken into account.
Especially with larger assets like real estate, the supplementary compulsory share can have significant financial consequences. Inflation-related changes in value and special considerations regarding gifts between spouses also play an important role in practice.
For children, spouses, or parents entitled to a compulsory share of the inheritance, a thorough legal review is therefore essential to correctly calculate and enforce the actual compulsory share, including any potential supplementary claims. The proper valuation of gifts often determines whether compulsory share claims are fully protected or whether financial disadvantages arise.