Compulsory portion
 

What is the compulsory portion?


If the deceased excludes his descendants or spouse from the legal succession by means of a will or other disposition of death, these relatives are nevertheless entitled to a minimum financial participation in the estate. However, the compulsory portion is not a "small inheritance". The person entitled to the compulsory portion does not become an heir with a lower inheritance quota either. Rather, the person entitled to the compulsory portion is entitled to a monetary payment from the heir or heirs. Unlike the heirs, the person entitled to the compulsory portion cannot access the estate. He must contact the heirs and claim his legal portion. If they do not react and refuse to pay the compulsory portion, the person entitled to the compulsory portion may have to sue his claim against the heirs. The person entitled to the compulsory portion cannot demand payment from other parties, in particular banks. Nor can he demand that instead of a sum of money a certain object be left to him. On the other hand, the heirs cannot demand that the person entitled to the compulsory portion is satisfied with an object 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 the compulsory portion is entitled.

 

How much is the compulsory portion?


The amount of the right to the compulsory portion depends on the value of the deceased's assets. It is relatively easy to determine first of all the percentage of the compulsory portion, i.e. the percentage with which the compulsory portion is calculated on the basis of the estate's assets. The compulsory portion quota is half of the legal inheritance. Example: If the widowed deceased has three children and only one child is appointed as his heir, the other two children, who were disinherited in this respect, can claim the legal portion. If the legal succession had taken place, the three children would have inherited the deceased in equal shares, i.e. 1/3 each. In this case the legal inheritance share would therefore be 1/3. The compulsory portion is half of the legal inheritance share, in the example case it would be 1/6 each.


Who is entitled to the compulsory portion?


The descendants of the deceased (children and grandchildren, great-grandchildren, etc.), the surviving spouse and - if the deceased had no descendants - also the parents of the deceased are entitled to the compulsory portion. The testator's grandchildren are entitled to a compulsory portion only if the parent who is descended from the testator himself is pre-deceased (the child of the testator dies leaving his own children before his parent). Siblings of the deceased are not entitled to a compulsory portion, even if they would be appointed heirs according to the legal succession, i.e. if the deceased has no descendants and his parents or one parent has pre-deceased. A prerequisite for the compulsory portion is always that the persons mentioned have been excluded from the legal succession, i.e. disinherited.

If the descendants, the spouse or the parents are not heirs of the deceased for another reason, for example because they have rejected the inheritance, they are not entitled to claim the legal portion. It would therefore be fundamentally wrong to refuse the inheritance with the intention of claiming the compulsory portion. But something else can result from legal provisions which explicitly assign the right to the compulsory portion to the person concerned even if the inheritance is rejected.

 

Who must pay the compulsory portion?


In principle, the heirs owe the fulfilment of the right to the compulsory portion. If there are several heirs, the person entitled to the compulsory portion can choose whether to claim all co-heirs or only one. The co-heirs are liable to the person entitled to the compulsory portion as joint debtors, i.e. each of them is liable to the person entitled to the compulsory portion for the full amount. The person entitled to the compulsory portion can demand the sum however naturally only once. If the person entitled to the compulsory portion demands the sum only from one co-heir or if only one co-heir fulfills the full demand of the person entitled to the compulsory portion, he can demand compensation from the other co-heirs according to 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 persons entitled to the compulsory portion. The entitled persons are also not informed by the court or any other authority. They must therefore take care of their own affairs 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 even has to calculate the compulsory portion himself and, if necessary, sue to suspend the statute of limitations. The probate court does not have jurisdiction for such an action. Frequently the lawsuit must be filed with the district court because of the expected amount of the compulsory portion. In this respect, there is a legal obligation, i.e. the person entitled to the compulsory portion cannot file the lawsuit himself at the court, but must do so through a lawyer. This is to be considered in particular if the statute of limitations threatens.

 

What can I demand information about from the heir?


According to § 2314 BGB the person entitled to the compulsory portion has a right to information from the heirs about the existence of the estate. The obligation to provide information according to § 2314 Abs. 1 S. 1 BGB does not only extend to the actually existing estate, but also to the so-called fictitious estate upon request of the person entitled to the compulsory portion. The fictitious estate includes all grants and allowances subject to offsetting and compensation. Not only gifts expressly designated as gifts are to be disclosed, but also other gifts suspected of being mixed gifts (OLG Frankfurt am Main, judgment of 24 July 2012 - Az. 11 U 117/10).

 

For this purpose, the heir must submit a written list of the estate of the deceased, showing the existence and value of the estate. The list must in particular include the actual assets of the deceased (real estate, bank, securities and custody account balances, company shareholdings, motor vehicles, jewelry, household effects), all liabilities of the estate, all gifts, also compulsory and decent gifts of the deceased and furthermore also all marriage-related benefits of the deceased to his spouse, which are to be paid in accordance with §§ 2325, 2329 BGB (German Civil Code), all benefits which could be subject to compensation under §§ 2050 ff, 2316, the matrimonial property regime in which the testator lived, all contracts in favor of third parties in the event of death and their beneficiaries, all life insurance contracts of the testator, even if you or third parties are appointed as beneficiaries, the matrimonial property regime in which the testator lived. If applicable, gifts made more than 10 years prior to the death of the deceased must also be listed, for example, gifts to the spouse or gifts of objects in which the deceased has reserved usufruct.

 

In addition to the right to information, the person entitled to the compulsory portion also has a right to a valuation. In particular with regard to real estate or possible company investments of the deceased, the person entitled to the compulsory portion can demand that the heir obtains expert opinions on the value.

 

 

 

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E-mail: info_at_gottschalk-erbrecht.de