Inheritance law and divorce
If spouses decide to separate, they are confronted with numerous legal issues and problems. In particular, a separation or even divorce has serious consequences in terms of family law; in addition, divorce also has consequences in terms of inheritance law.
What are the inheritance law consequences of a divorce?
According to § 1933 of the German Civil Code, the right of inheritance of the spouse expires if, at the time of the decedent's death, the conditions for divorce were met and the decedent had applied for divorce or consented to it.
The same applies to the case if there was a ground for annulment of the marriage under Section 1314 of the Civil Code and the testator had applied for annulment of the marriage.
Nevertheless, it may be that despite divorce, the ex-partner receives assets in the event of death. If one inherits the common child and this child dies unmarried and without children before the ex-spouse, the latter becomes the sole heir and thus receives the assets despite the divorce.
To avoid such a constellation, it is advisable to appoint a subsequent heir to whom the assets are to go after the death of the previous heir.
What happens to the will after the divorce?
Pursuant to Section 2077, Paragraph 1, Sentence 1 of the German Civil Code, a testamentary disposition by which the testator has made provision for his or her spouse is invalid if the marriage was dissolved before the testator's death. Pursuant to sentence 2, it is equivalent to the dissolution of the marriage if, at the time of the testator's death, the prerequisites for the divorce of the marriage existed and the testator had applied for the divorce or had consented to it. However, Sections 2077 (3) and 2268 (2) of the Civil Code expressly provide that it cannot be assumed that the testamentary disposition is invalid if it is intended that the testamentary disposition in favor of the spouse or the bequest in favor of the spouse should also apply in the event that the marriage is divorced.
The corresponding burden of proof for the existence of the testator's will in this regard lies with the surviving ex-partner.
The fact that the partners still get along well after the divorce is not sufficient to establish a corresponding will of the testator. It is therefore advisable for the testator who is still alive to provide appropriate clarity as to how to proceed in the event of a divorce.
What happens to maintenance claims after the death of the ex-partner?
The divorced spouse's maintenance claims under sections 1569 to 1586 of the German Civil Code (BGB) continue to exist after the death of the testator. The existing maintenance claim is transferred to the heirs as a liability of the estate.
Pursuant to Section 1981 of the Civil Code, the new maintenance debtor cannot invoke a lack of capacity. Pursuant to section 1586b (1) sentence 3 BGB, the heir or community of heirs is liable only up to the contribution corresponding to the compulsory portion of the dependent ex-spouse that the latter would have had if the marriage had not been divorced.