Right to a compulsory portion - consideration of marital benefits
In addition to the claim to the compulsory portion, which is to be determined on the basis of the actual estate at the time of the death, the beneficiary of the compulsory portion may also be entitled to a so-called claim to supplement the compulsory portion. A claim to supplement the compulsory portion arises if the testator reduces his or her assets during his or her lifetime by making gifts to third parties. The item given away is added to the estate. This is intended to prevent reductions in assets during the testator's lifetime, which are not matched by any consideration, from reducing the claim to the compulsory portion. If the testator has made a gift to a third party, the beneficiary of the compulsory portion may, pursuant to § 2325 (1) BGB, demand as a supplement to the compulsory portion the amount by which the compulsory portion is increased if the object given away is added to the estate.
In the context of a marriage, it is typical that the spouses give mariage-related benefits to each other. These are usually not gifts in a legal sense, but so-called "marriage-related benefits". A so-called "marriage-related unnamed donation" or "marriage-related benefit" exists if one spouse gives the other an asset for the sake of the marriage and as a contribution to realising and structuring, maintaining or securing the marital community.
According to case law, such "marriage-related benefits" are treated as gifts with respect to compulsory portions if they are "objectively gratuitous". This "objective gratuitousness" is thus the central distinguishing feature and prerequisite for a gift from one spouse to the other spouse to lead to a claim for supplementary compulsory portion or to be relevant for the latter. However, because this is a legal term that can be understood in different ways, it is often not clear in practice whether a marriage-related benefit given between spouses is "objectively gratuitous" or not.
Is a contribution to provide for the old age of the other spouse "objectively gratuitous" and thus liable to supplement the compulsory portion?
In a decision of 27.09.1995, the Federal Supreme Court of Germany (BGH) (file no. IV ZR 217/93) assessed the granting of usufruct of a flat in favour of the other spouse in a specific case as an objectively gratuitous gift. However, the Federal Supreme Court also stated that the obligation of one spouse to provide for an adequate old-age provision may prevent a contribution from being classified as "gratuitous". However, this was not the rule. In the case at hand, the BGH considered the claim that the donation was made for old-age provision to be only pretextual. In addition, the BGH held that the recipient had not been dependent on the usufruct for old-age provision.
The decision of the Federal Supreme Court was criticised in the literature because the necessary safeguarding of marital living conditions and thus the protection of the constitutionally protected institution of marriage was not taken into account if marriage-related contributions were generally treated as gratuitous transactions in inheritance law.
The Higher Regional Court of Schleswig (OLG Schleswig) in a decision of 16.2.2010, case no. 3 U 39/09, assessed the donation of a usufruct for old-age provision in the specific case as being not gratuitous and therefore denied an effect on a claim to a supplementary compulsory portion. In doing so, the OLG Schleswig took into account that the old-age provision was appropriate according to the circumstances in which the spouses had lived. The assessment of whether a benefit is to be regarded as adequate old-age provision requires a comprehensive appraisal of the spouses' income and financial circumstances, in addition to a forecast of their probable future development. In the concrete case which the Higher Regional Court of Schleswig had to judge, the spouses as pensioners had relatively modest incomes (jointly 1,580.00 €). The wife and heiress had only approx. 1,200.00 € at her disposal including the disputed usufruct.
In its decision of 26 January 2011, file no. 19 W 52/10, the Higher Regional Court of Stuttgart assessed the payment of the testator into the private pension insurance of his wife in the amount of € 58,300.00 as an adequate old-age provision due to the relatively low widow's pension and precisely not as relevant for the supplementation of the compulsory portion.
In its judgment of 27 October 2016, Case No. 10 U 61/0, the Higher Regional Court of Hamm qualified the donation of a widow's pension in the amount of DM 1,500.00 in favour of the wife in a property transfer agreement as a marriage-related donation despite the designation as a gift in the notarial agreement and did not assume any "gratuitousness". Here too, in the specific case and taking into account the spouses' living conditions, the court regarded the donation of the widow's pension as an appropriate old-age provision.
Can maintenance payments to the spouse be "objectively gratuitous" and thus liable to supplement the compulsory portion?
No, maintenance payments are not gratuitous gifts. The existence of a gift subject to the obligation to supplement the compulsory portion within the meaning of section 2325 of the Civil Code is therefore to be denied without any problems if the donating spouse only fulfils a legal obligation by his or her donation, in particular a maintenance obligation.
Thus, if one spouse lives in the house or flat that is solely owned by the other spouse or if only one of the spouses pays the rent for the jointly occupied flat, this is not done gratuitously within the scope of marital maintenance and does not lead to a supplement to the compulsory portion. Marital maintenance includes, among other things, the costs of housing, food, clothing, medical care, cultural needs, health and old-age provision, holidays, etc., which are usually granted in the form of maintenance in kind. In addition, each of the spouses is entitled to an appropriate part of the total income as pocket money, i.e. a sum of money which is intended to enable him or her to satisfy his or her personal needs as he or she sees fit and freely chooses, irrespective of any say in the matter by the other spouse (cf. BGH, judgment of 12.12.2012, Ref. XII ZR 43/11, para. 26).