1. what is the deadline for renouncing an inheritance for a minor child?
The waiver of the inheritance is also made in the case of minors by means of a formal declaration to the probate court, Section 1945 (1) BGB, Sections 343 and 344 (7) FamFG. The deadline is six weeks from reliable knowledge of the claim and the reason for the appointment as heir or from notification of the disposition of property upon death, Section 1944 para. 2 sentences 1 and 2 BGB. In cases involving foreign countries, the period is six months in total, Section 1944 para. 3 BGB.
The start of the time limit does not depend on the knowledge of the minor heir himself, but on that of the legal representative. In the case of joint parental custody, it is disputed whether the time limit starts to run when one of the parents has reliable knowledge. In the absence of clarification of this question by the supreme court, as a precautionary measure it should be assumed that only one parent is aware of the situation, i.e. the waiver should be declared within the relevant deadline.
2 Who must submit the declaration of renunciation for the minor child?
If both parents are entitled to custody, both parents must also submit the declaration of waiver for the minor child. If several custodians cannot agree on the waiver, the person wishing to waive the inheritance must first appeal to the family court due to the transfer of the authority to do so to themselves alone, Section 1628 sentence 1 BGB.
The minor child can also make the declaration of renunciation themselves if the parents have previously given their consent. Subsequent authorisation by the parents is not possible. However, the prerequisite for a declaration of renunciation by the minor child themselves is that the child is capable of taking part in the proceedings, i.e. is at least 14 years old.
3. authorisation requirement and form of waiver
The legal representatives require authorisation from the family court to waive the inheritance on behalf of their child, Section 1643 para. 2 sentence 1, Section 1822 no. 2 BGB.
However, parents do not require authorisation from the family court to disclaim an inheritance in the name of their child if the child only succeeds as heir as a result of the disclaimer of a parent, Section 1643 para. 2 sentence 2. This is based on the legislator's idea that a good reason for the disclaimer in the name of the child can be presumed if the parent who previously excluded the child from the succession also declared the disclaimer in their own name. However, according to Section 1643 para. 2 sentence 2 BGB, this presumption does not apply if
- the child was appointed alongside a parent,
- one of the parents becomes the legal heir following the renunciation of the child appointed by testamentary disposition, or
- the waiver is not made uniformly for several children appointed as heirs (selective waiver).
In these cases, it is then assumed that the parents want to direct the inheritance in certain ways and that the parents may no longer be pursuing the interests of their minor child. In this case, the family court must examine whether the renunciation is actually in the interests of the minor child.
4. what effect does the authorisation of the family court have on the time limit for the renegotiation?
If the authorisation of the family court has to be obtained first, there are difficulties in complying with the actually applicable deadline of only 6 weeks (without foreign reference). The deadline still applies in this case. However, the First is suspended for the period between the application to the family court and notification of the decision due to force majeure in accordance with Section 1944 para. 2 sentence 3, Section 206 BGB. However, the parents must then independently ensure that the authorisation decision of the family court is received by the probate court in good time within the period of time that begins to run again. The family court does not forward the decision to the probate court on its own initiative.