Disinheritance - Disinheritance by will, deprivation of compulsory portion and unworthiness to inherit
How can I disinherit my legal heirs?
In principle, every person capable of making a will has the freedom to regulate his or her succession under inheritance law in deviation from the statutory succession and to exclude his or her relatives from the succession.
All that is required is an effective testamentary disposition. Reasons for the disinheritance do not have to be stated.
It should be noted, however, that the disinheritance of a relative by testamentary disposition nevertheless has no effect on the entitlement to the compulsory portion and this remains in force irrespective of the testator's will. Pursuant to section 2303 (1) sentence 2 of the German Civil Code (Bürgerliches Gesetzbuch - BGB), the claim to the compulsory portion amounts to half of the statutory share of the inheritance. It is therefore not possible to disinherit relatives completely without further ado.
How can I withdraw the compulsory portion?
The compulsory portion can only be withdrawn under particularly strict conditions. A fixed catalog of grounds for deprivation of the compulsory portion has been implemented in § 2333 BGB.
Grounds for deprivation of the compulsory portion are:
1. if the descendant seeks the life of the testator, the spouse of the testator, another descendant or a person similarly close to the testator.
2. if the descendant is guilty of a crime or serious intentional offense against the testator, the spouse of the testator, another descendant or a person similarly close to the testator.
3. if the descendant maliciously violates the duty of support legally incumbent upon him/her towards the testator.
In addition, the compulsory portion may be withdrawn if the descendant is sentenced by a final court decision to a term of imprisonment of at least one year without probation for an intentional criminal offense and the descendant's participation in the estate is therefore unreasonable for the testator. The same applies if the placement of the descendant in a psychiatric hospital or in a rehabilitation institution is ordered by a final court decision due to a similarly serious intentional act.
However, it is important to emphasize that the grounds for deprivation must be treated with caution and that high hurdles are set for the affirmation of such grounds.
Furthermore, the reason for deprivation 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 ruling of March 10, 2004, the Federal Court of Justice (BGH) stated that the relative who has been deprived of the compulsory portion by the testator can have it determined in court whether the deprivation of the compulsory portion is legally effective during the testator's lifetime (Ref.: IV ZR 123/03).
Pursuant to § 2336 (3) BGB, the burden of proof is on the party claiming the deprivation of the compulsory portion.
Can a relative be disinherited even after the death of the testator?
It is possible to disinherit a testamentary or legal heir even after the testator's death. This is possible by asserting unworthiness to inherit. In this case, the acquisition of the inheritance is contested within the meaning of Section 2340 (1) of the German Civil Code.
Pursuant to § 2341 of the Civil Code, anyone who benefits from the omission of the person unworthy to inherit, even if only from the omission of another, is entitled to contest the inheritance. Pursuant to section 2340(3) in conjunction with section 2082(1) of the Civil Code, avoidance may only be asserted within one year. Pursuant to section 2082(2) sentence 1 of the Civil Code, the period begins at the time when the person entitled to contest becomes aware of the grounds for contesting, i.e. the reasons for the unworthiness to inherit. Pursuant to section 2082(3) of the Civil Code, avoidance is excluded if 30 years have elapsed since the inheritance occurred.
Reasons for unworthiness to inherit are set out in section 2339(1) of the Civil Code. Accordingly, unworthy to inherit is:
(1) Whoever intentionally 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 revoking a disposition of property upon death until his death.
(2) Whoever intentionally and unlawfully prevented the testator from making or revoking a disposition of property upon death.
(3) Any person who, by fraudulent misrepresentation or unlawful threat, induced the testator to make or revoke a disposition of property upon death.
(4) Any person who, in respect of a disposition of the testator upon death, has been guilty of an offence under sections 267 (forgery of documents), 271 to 274 of the Criminal Code.
However, in accordance with Section 2339(2) of the Civil Code, in the cases of the third and fourth grounds, inheritance ineligibility shall not occur if, prior to the occurrence of the succession, the disposition which the testator was determined to make or in respect of which the criminal offense was committed had become ineffective, or the disposition which the testator was determined to revoke would have become ineffective.
If the heir has been validly declared unworthy of inheritance, the inheritance shall be deemed not to have accrued. The inheritance shall then be granted to the person who would be entitled to it in the event of the death of the heir unworthy of inheritance.
Pursuant to Section 2345 of the Civil Code, the provisions applicable to incapacity to inherit also apply to legatees and beneficiaries of a compulsory portion. Thus, a legatee may become unworthy of a legacy and a disinherited beneficiary of a compulsory portion may become unworthy of a compulsory portion if their position is contested.