Statutory share (inheritance law)

Legally Mandated Share (Inheritance Law) - The legally mandated share is a minimum portion of the estate guaranteed by law to close relatives who have been excluded from the succession by a will or inheritance contract. It amounts to half the value of the statutory share of the inheritance and constitutes solely a monetary claim against the heirs-there is no claim to specific estate assets such as real estate.

Eligible Persons and Calculation of the Statutory Share

According to Section 2303 of the German Civil Code (BGB), those entitled to the statutory share are the descendants of the decedent (children, grandchildren, great-grandchildren), the spouse or registered civil partner, and the parents of the decedent. However, parents are only entitled to a compulsory portion if there are no descendants. Siblings, uncles, aunts, and other distant relatives have no claim to a compulsory portion.

The amount of the compulsory portion is calculated in two steps. First, the statutory share of the estate is determined, which the beneficiary would be entitled to in the absence of a testamentary disposition. The compulsory portion amounts to half of this. An example: If the decedent leaves behind a spouse and two children, the statutory share of each child under the community of accrued gains regime is one-fourth. The statutory share of the disinherited child would then be one-eighth of the estate’s value.

For the calculation, the entire estate must be valued as of the date of death. For real estate, the market value is decisive, not the tax-assessed property value. Under Section 2314 of the German Civil Code (BGB), the beneficiary of the statutory share has a right to information and valuation against the heir. They may demand that an expert opinion be obtained at the estate’s expense. In the Nuremberg metropolitan region, where real estate often constitutes the largest portion of the estate’s assets, the amount of the statutory share thus depends significantly on the correct valuation of the real estate.

The statutory share is a purely monetary claim. The heir must pay out the amount but has no right to choose to transfer a share of the real estate instead. Conversely, the beneficiary of the statutory share cannot demand a say in the management or sale of the inherited real estate.

Claim for Supplementary Statutory Share in Case of Gifts

In addition to the standard statutory share, there is a claim for a supplementary statutory share under Section 2325 of the German Civil Code (BGB). This protects beneficiaries of the statutory share from the testator reducing their estate through gifts made during their lifetime. Gifts made by the decedent in the ten years prior to the opening of the estate are added back to the estate for calculation purposes. A phasing-out rule applies here: In the first year before the opening of the estate, the gift is taken into account in full; in the second year, nine-tenths; in the third year, eight-tenths-and so on, until no further deduction is made after ten years have elapsed.

In the case of gifts subject to a right of usufruct-a common arrangement in real estate transfers-the ten-year period, according to prevailing case law, begins only upon the termination of the usufruct. For example, if a multi-family home is transferred with a right of usufruct and the donor dies eight years later without having relinquished the usufruct, the gift is fully included in the calculation of the compulsory portion.

Practical Tip for Real Estate Heirs in Nuremberg and Franconia

If the estate consists primarily of real estate in Nuremberg or the metropolitan region, the payment of the statutory share often presents heirs with liquidity problems. For such cases, the legislature has provided for a deferral option in § 2331a BGB: The heir may apply to the probate court for a deferral of the statutory share if immediate payment would constitute undue hardship-for example, if the family home used for personal residence would have to be sold to cover it.

We recommend that property owners in the region consider the statutory share issue early on in their estate planning. The potential for conflict can be significantly reduced through agreements to waive the statutory share, which must be notarized, or through staggered gifts. In the event of a planned real estate sale to cover statutory share claims, we provide support with a market-based valuation and discreet marketing.

Frequently Asked Questions

Can one waive the statutory share?

Yes, beneficiaries of a statutory share may waive their future claim during the testator’s lifetime through a notarized waiver of statutory share agreement. This often occurs as part of an anticipated succession arrangement, where the waiving party receives compensation-such as a property or a sum of money-in exchange. The waiver must be voluntary and requires notarization.

How is real estate in the estate valued for the statutory share?

The market value at the time of death is decisive. Under Section 2314 of the German Civil Code (BGB), the beneficiary of the statutory share may request an expert appraisal at the estate’s expense. In practice, the heirs often commission a publicly appointed and sworn expert to avoid future disputes over the value of the real estate. Discrepancies between the property’s tax value and its market value can be significant.

Does the claim to a compulsory share become time-barred?

According to Section 2332 of the German Civil Code (BGB), the claim to a compulsory share becomes time-barred within three years. The period begins at the end of the year in which the beneficiary of the compulsory share became aware of the opening of the estate and the disposition affecting their rights. Regardless of this knowledge, the claim expires no later than 30 years after the opening of the estate. We advise those affected to have their claims reviewed promptly to avoid missing any deadlines.

How does a “Berlin will” affect the statutory share?

The so-called Berlin will is a common joint disposition by spouses in which both designate each other as sole heirs, and the children inherit as final heirs only after the death of the longer-living spouse. The children are disinherited upon the death of the first-to-die spouse and thus have a claim to a statutory share against the surviving parent. To prevent the surviving parent from having to immediately settle claims to the statutory share, many Berlin wills include a statutory share penalty clause: Anyone who claims their statutory share upon the first death will also receive only the statutory share upon the death of the second parent. For parents who own real estate in the Nuremberg metropolitan area, this is an important planning option, but it must be carefully drafted by a notary-generic penalty clauses regarding the statutory share can lead to disputes in practice.

Back to the Real Estate Glossary.