Order of succession (statutory)

Order of Succession (Statutory) - Statutory succession is the system set forth in the German Civil Code (Sections 1924-1936 BGB) that determines who inherits a deceased person’s estate when there is no valid will or inheritance contract. It determines, based on a system of orders and the degree of kinship, which persons are entitled to inherit, in what order, and in what shares.

The System of Orders in Statutory Succession

German inheritance law divides the decedent’s relatives into orders (also called parenteles). Heirs of a higher order completely exclude all heirs of lower orders.

First-order heirs (§ 1924 BGB) are the descendants of the decedent-that is, children, grandchildren, and great-grandchildren. Children inherit in equal shares. If a child is no longer alive at the time of death, their descendants take their place (right of substitution). This applies equally to legitimate, illegitimate, and adopted children.

Second-order heirs (Section 1925 BGB) are the testator’s parents and their descendants-that is, siblings, nieces, and nephews. They only inherit if there are no first-order heirs. If both parents are still alive, they each inherit half. If one parent has predeceased the testator, that parent’s descendants take their place.

Third-order heirs (§ 1926 BGB) are the grandparents and their descendants-uncles, aunts, and cousins. Fourth-order heirs and subsequent orders include great-grandparents and their further descendants. In practice, these distant relatives rarely come into line.

The spousal inheritance right (§ 1931 BGB) exists alongside the order of succession. The surviving spouse inherits one-quarter of the estate alongside heirs of the first order, and one-half alongside heirs of the second order. Under the widely used community of accrued gains-the statutory matrimonial property regime-the spouse’s share of the inheritance increases by a flat rate of an additional one-quarter (Section 1371(1) BGB). Alongside children, the surviving spouse thus inherits half of the estate under the community of accrued gains, while the children share the other half in equal parts. Registered civil partners are treated equally to spouses under inheritance law.

If there are no relatives and no spouse, the tax authorities-in Bavaria, the Free State of Bavaria-inherit as the statutory heir (Section 1936 BGB).

Impact on Real Estate Ownership and Community of Heirs

If a property is part of the estate and statutory inheritance shares apply, a community of heirs generally arises (Section 2032 BGB). All co-heirs become joint owners of the property-this is joint tenancy, not fractional ownership. This means: No single co-heir can dispose of, encumber, or sell the property on their own. All decisions regarding management and disposal must be made unanimously or according to majority rules.

In practice, the community of heirs often leads to conflicts regarding real estate-especially when individual co-heirs wish to use the property, while others want to realize their share as a monetary value. If no agreement is reached, the last resort is a partition auction under § 180 ZVG, which typically yields a price significantly below the achievable market value and is disadvantageous for all parties involved.

Practical Tip for Nuremberg and the Metropolitan Region

In the Nuremberg metropolitan region, we regularly see real estate being inherited without a will, leaving the resulting community of heirs unable to act for years. Especially given the rise in real estate values in Nuremberg, Fürth, and Erlangen, financial disputes among co-heirs can reach significant proportions. We therefore recommend that property owners not simply accept the statutory order of succession but actively shape it through a will or an inheritance contract. This allows them to determine who receives the property, whether a right of residence is granted, and how the remaining heirs are compensated. Anyone who is already part of a community of heirs and needs to manage or sell a property in the Nuremberg area benefits from a professional market valuation as the basis for an amicable settlement.

Frequently Asked Questions

Does my spouse automatically inherit everything if I don’t have a will?

No. Under statutory succession, the surviving spouse does not inherit alone but shares the estate with existing relatives. In the most common scenario-a community of accrued gains with children-the spouse receives half, and the children share the other half. Only if there are no heirs of the first or second degree does the spouse inherit alone. Anyone who wants to ensure that their partner receives the property in its entirety needs a will or an inheritance contract.

What happens if a co-heir wants to sell their share of the inherited property?

A co-heir may sell their share of the entire estate (Section 2033 of the German Civil Code), but not their share of a single estate asset such as a property. The remaining co-heirs have a statutory right of first refusal. In practice, the sale of an inheritance share is often only possible at a significant discount. It is generally more sensible to sell the property jointly or for one co-heir to buy out the others with a compensation payment.

Do children born out of wedlock have the same inheritance rights as those born in wedlock?

Yes. Since the 2010 inheritance law reform, children born out of wedlock have been fully equal to those born in wedlock under inheritance law. They are first-order heirs and inherit equal shares alongside their siblings. This also applies to the right to a compulsory portion. In the case of real estate in the estate, this means that all children-regardless of their parents’ marital status-become co-owners with equal rights in the community of heirs.

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