Disinheritance - How the heirs go away empty-handed

Disinheritance - How do the heirs go away empty-handed?

How can I disinherit my legal heirs?

In principle, every person with testamentary capacity has the freedom to organise their succession in deviation from the statutory order of succession and to exclude their relatives from the succession.

This only requires an effective testamentary disposition. Reasons for the disinheritance do not have to be given.

It should be noted that the disinheritance of a relative by will can result in the relative receiving a compulsory portion. Only descendants (children and grandchildren, etc.), spouses and parents are entitled to a compulsory portion (Section 2303 BGB) This is not a „small inheritance share“, but a payment claim against the heirs. Pursuant to Section 2303 (1) sentence 2 BGB, the compulsory portion claim amounts to half of the statutory inheritance share. A complete „disinheritance“ of the relatives is therefore not possible without further ado.

How can I withdraw the compulsory portion?

The compulsory portion can only be withdrawn under particularly strict conditions. A fixed catalogue of reasons for the withdrawal of a compulsory portion has been implemented in Section 2333 BGB.

Reasons for a withdrawal of the compulsory portion are

1. If the descendant attempts to kill the deceased, the deceased's spouse, another descendant or a person similarly related to the deceased.

1. If the descendant is guilty of a crime or a serious intentional offence against the deceased, the deceased's spouse, another descendant or a person similarly related to the deceased.

1. If the descendant maliciously breaches the statutory maintenance obligation owed to the testator.

1. In addition, the compulsory portion can be withdrawn if the descendant is sentenced to at least one year's imprisonment without probation for an intentional criminal offence and it is therefore unreasonable for the testator to allow the descendant to share in the estate. The same applies if the placement of the descendant in a psychiatric hospital or in a detention centre for a similarly serious intentional offence is ordered by a final court order.

Furthermore, the reason for the withdrawal of the compulsory portion must be stated in the will.

Can I defend myself against the withdrawal of the compulsory portion?

If the beneficiary of the compulsory portion claims that the withdrawal of the compulsory portion is invalid, this can be challenged by contesting the will.

In its judgement of 10 March 2004, the Federal Court of Justice ruled that a relative who has been deprived of the compulsory portion by the testator can have the court determine whether the deprivation of the compulsory portion is legally valid during the testator's lifetime (case reference: IV ZR 123/03).

Pursuant to Section 2336 (3) BGB, the burden of proof lies with the party asserting the deprivation of the compulsory portion.

Can a relative be disinherited even after the death of the testator?

Even after the death of the testator, it is possible to withdraw the inheritance of a testamentary or legal heir. This is possible by claiming ineligibility to inherit. In this case, the inheritance is contested within the meaning of Section 2340 (1) BGB.

Pursuant to Section 2341 of the German Civil Code, anyone who benefits from the loss of the unworthy heir, even if it is only the loss of another, is entitled to contest the inheritance. Pursuant to Section 2340 (3) in conjunction with Section 2082 (1) BGB, the avoidance can only be asserted within one year. Pursuant to Section 2082 (2) sentence 1 BGB, the period begins at the time at which the party entitled to contest becomes aware of the grounds for contestation, i.e. the reasons for the ineligibility to inherit. Pursuant to Section 2082 (3) BGB, avoidance is excluded if 30 years have elapsed since the inheritance.

Reasons for unworthiness to inherit are set out in Section 2339 (1) BGB. According to this, unworthiness to inherit:

1. Any person who wilfully and unlawfully killed or attempted to kill the testator or placed the testator in a condition as a result of which the testator was incapable of making or cancelling a disposition of property upon death until his or her death.

1. Anyone who has wilfully and unlawfully prevented the testator from making or cancelling a disposition of property upon death.

1. Any person who, by fraudulent misrepresentation or unlawfully by threat, has caused the testator to make or revoke a disposition of property upon death.

1. Anyone who has committed an offence under Sections 267 (falsification of documents), 271 to 274 of the Criminal Code with regard to a disposition of the testator upon death.

However, in accordance with Section 2339 (2) BGB, the ineligibility to inherit does not arise in the cases of the third and fourth grounds if, prior to the occurrence of the succession, the disposition which the testator was determined to make or in respect of which the offence was committed has become ineffective, or the disposition which he was determined to revoke would have become ineffective.

If the heir has been effectively declared unworthy of inheritance, the inheritance is deemed not to have been received. The inheritance is then granted to the person who would be entitled to it in the event of the death of the unworthy heir.

Pursuant to Section 2345 of the German Civil Code (BGB), the provisions applicable to ineligibility to inherit also apply to legatees and persons entitled to a compulsory portion. This means that a legatee can become unworthy of a legacy and a disinherited person entitled to a compulsory portion can become unworthy of a compulsory portion if their position is contested.