Matrimonial property regime: The influence of the matrimonial property regime on inheritance
It is often forgotten that a marriage not only ends legally through divorce, but also through the death of a spouse. In this case, the agreements made during their lifetime regarding the matrimonial property regime can have an influence on the surviving spouse's subsequent inheritance. The matrimonial property regime determines how the property relations between the spouses are regulated. The matrimonial property regime plays a decisive role, particularly if the testator has not made a last will and testament.
What influence does the matrimonial property regime have on the estate?
Firstly, it must be determined whether the spouses have concluded an agreement on the matrimonial property regime by way of a marriage contract. If this is not the case, the statutory matrimonial property regime applies.
1. the statutory matrimonial property regime, namely the community of accrued gains
The community of accrued gains is the statutory matrimonial property regime if no corresponding agreements have been made. Pursuant to Section 1363 Paragraph 2 Sentence 1 of the German Civil Code (BGB), the spouses' respective assets are divided in the community of accrued gains. not to their joint assets. However, any gains realised during the marriage are equalised when the marriage ends. In addition to divorce, death is also considered a termination of the marriage. This means that, according to the law, gains must be equalised upon the death of a spouse.
In accordance with Section 1371 (1) BGB, if the matrimonial property regime is terminated by the death of a spouse, the equalisation of the gain is realised by increasing the statutory inheritance share of the surviving spouse by one quarter of the inheritance. It is irrelevant whether the spouses have realised a gain in the individual case. It is irrelevant whether the spouses have made a so-called gain, the so-called lump-sum solution.
Example:
E's inheritance amounts to € 100,000. He lived with his wife F under the statutory matrimonial property regime of community of accrued gains and leaves behind two other joint children in addition to F.
According to the lump-sum solution, the wife is entitled to ¼ in accordance with statutory inheritance law pursuant to Section 1931 (1) BGB. In addition, the lump-sum increase of the inheritance share by ¼ is added in accordance with Section 1371 (1). This results in a total inheritance share of 1/2 for E. E therefore inherits €50,000.
In addition, the surviving spouse has the option of claiming his or her specifically calculated gain. Under certain circumstances, this may be more attractive for the spouse than the lump-sum distribution of the gain. Pursuant to Section 1371 (3), the surviving spouse can waive the inheritance and claim the compulsory portion in addition to the equalisation of the gain even if he or she would not be entitled to it under the provisions of inheritance law.
Example:
E's inheritance amounts to € 100,000. He lived with his wife F under the statutory matrimonial property regime of community of accrued gains and leaves behind two other joint children in addition to F. During the marriage, E made a total gain of € 100,000, while F made a gain of € 0.
If the surviving F rejects her inheritance, she is entitled to the compulsory portion in accordance with Section 1371 (3) BGB. The compulsory portion is calculated as half of the statutory inheritance share. The statutory inheritance share is reduced from ¼ to 1/8. Calculated on the basis of the amount of the estate, the amount of the compulsory portion claim is €12,500.
In addition, E is entitled to the distribution of the gain realised during the marriage. Pursuant to Section 1378 (1), the surviving spouse is entitled to half of the surplus as an equalisation claim. As E realised a gain of €100,000 during the marriage and F was unable to earn any, this results in a surplus of €100,000. E is therefore entitled to an equalisation claim of € 50,000.
E can therefore demand a total of € 62,500.
2. modified community of accrued gains
In practice, the statutory matrimonial property regime of the community of accrued gains is often modified. This is referred to as modified community of accrued gains. In most cases, the equalisation of gains is excluded in the event of divorce, but not in the event of death. The above calculations would not change in such a case. However, the situation would be different if the equalisation of gains was also excluded in the event of death.
3. separation of property
If the spouses have agreed the matrimonial property regime of separation of property, the two spouses are treated as if they were not married in terms of property law. From an inheritance law perspective, the surviving spouse only receives an inheritance share in accordance with Section 1931 BGB in the matrimonial property regime of separation of property. If the deceased also left descendants, the spouse only inherits ¼ of the estate.
4. community of property
In the community of property regime, the respective assets of the spouses become joint assets in accordance with Section 1416 (1). In the event of inheritance, the surviving spouse inherits only ¼ of the first-order heirs.