Inheritance law and divorce
If spouses decide to separate, they are confronted with numerous legal issues and problems. Divorce can also have an impact on inheritance law.
What are the consequences of divorce under inheritance law?
Pursuant to Section 1933 of the German Civil Code (BGB), the spouse's right of inheritance expires if the conditions for divorce were met at the time of the deceased's death and the deceased had requested or consented to the divorce.
The same applies if there were grounds for annulment of the marriage pursuant to Section 1314 BGB and the testator had filed an application for annulment of the marriage.
Nevertheless, it is possible that the deceased's assets may unintentionally pass to their former spouse. This is the case, for example, if the deceased's assets initially go to a joint child with the ex-spouse. If this joint child now also dies without being married and leaving children of their own and without having made a will, the ex-spouse becomes the legal heir of this child and thus also indirectly benefits from the deceased's assets.
In order to avoid such a constellation, it is advisable to appoint a subsequent heir to whom the assets should go after the death of the joint child.
What happens to the will after the divorce?
Pursuant to Section 2077 (1) sentence 1 BGB, a testamentary disposition by which the testator has provided for his or her spouse is invalid if the marriage was dissolved before the testator's death. Pursuant to Section 2077 (1) sentence 2, it is equivalent to the dissolution of the marriage if, at the time of the testator's death, the conditions for divorce were met and the testator had applied for divorce or consented to it. However, Sections 2077 (3) and 2268 (2) BGB expressly provide that the testamentary disposition cannot be assumed to be invalid if the appointment of the spouse as heir or the bequest in favour of the spouse is also to apply in the event that the marriage is divorced.
The burden of proof for the existence of the testator's will in this regard lies with the surviving ex-partner. A good relationship between the partners after the divorce is not sufficient to establish the will of the testator.
What happens to maintenance claims after the death of the ex-partner?
The divorced spouse's maintenance claims in accordance with Sections 1569 to 1586 BGB remain in force even after the death of the deceased. The existing maintenance claim is transferred to the heirs as a binding inheritance.
Pursuant to Section 1981 BGB, the new maintenance debtor cannot invoke a lack of ability to pay. Pursuant to Section 1586b (1) sentence 3 BGB, the heir is only liable up to the amount corresponding to the compulsory portion of the ex-spouse entitled to maintenance that the latter would have had if the marriage had not ended in divorce.