Statutory share

The statutory share is the legally guaranteed minimum portion of the estate to which certain close relatives are entitled even if they have been disinherited by a will or inheritance contract. It amounts to half of the statutory inheritance share and, pursuant to Sections 2303 et seq. of the German Civil Code (BGB), constitutes a monetary claim against the heir(s)-not a claim to specific estate assets. When real estate is included in the estate, the claim to the statutory share can place a significant financial burden on the heirs, especially if the estate’s assets are almost exclusively tied up in real estate.

Beneficiaries of the Statutory Share and Calculation

Those entitled to the statutory share are the decedent’s children (including adopted children), parents (if there are no children), and the spouse. Siblings, nieces, nephews, or unmarried partners have no right to a statutory share. The statutory share of the inheritance is determined based on the statutory order of succession; the statutory share amounts to exactly half of that.

An example: Under statutory succession, a child would have inherited 100% as the sole heir-the statutory share would then amount to 50% of the estate’s value. If there are two children, each child would have a statutory share of 50%, meaning a statutory share of 25% of the estate’s value. In the case of a spouse and two children under the community of accrued gains regime, the spouse would have a statutory share of 50%, and the statutory share would accordingly amount to 25% of the estate’s value.

The starting point for the calculation is the value of the estate at the time of death-for real estate, this is the market value according to the ImmoWertV. The decedent’s debts are deducted, and gifts made in the last ten years may be added (claim for supplementation of the statutory share).

Implications for Real Estate in the Estate

If the estate consists primarily of real estate, the statutory share presents the heirs with a liquidity problem: The claim must be fulfilled in cash, even if no liquid assets are available. Heirs are then often forced to take out a loan against the real estate or sell it in order to pay out the statutory share.

The situation is particularly critical when the surviving spouse has inherited the jointly occupied family home and must now pay the disinherited child a statutory share claim amounting to several hundred thousand euros-without any personal liquidity. In such situations, the heir may apply to the probate court for a deferral of the statutory share if immediate fulfillment would constitute undue hardship (Section 2331a of the German Civil Code).

A professional real estate appraisal at the time of death is therefore essential, as it forms the basis for calculating the claim to the statutory share. Parties who agree on a value save on appraisal costs. Anyone wishing to challenge the value requires a court-admissible appraisal from a certified expert.

Supplement to the Statutory Share in the Case of Gifts

To circumvent claims to the statutory share, testators often transfer real estate to preferred heirs during their lifetime. The law counters this attempt at circumvention with the claim for a supplement to the statutory share (Section 2325 of the German Civil Code): Gifts made in the last ten years prior to the opening of the estate are added to the estate-according to a sliding scale (10% for each full year)-.

Specifically: A real estate gift made nine years before the opening of the estate is still added to the estate at 10% of its value. Only gifts made more than ten years prior are completely disregarded. Note: In the case of gifts subject to a right of usufruct, the limitation period may, under certain circumstances, not begin to run according to the case law of the Federal Court of Justice (BGH) if the donor continues to exercise economic control over the property.

Practical Tip for Property Owners in Nuremberg and Franconia

Real estate owners in Nuremberg and Franconia should incorporate the issue of the statutory share into their estate planning at an early stage. Especially with high-value properties in sought-after locations-such as single-family homes in Erlangen-Büchenbach or multi-family homes in Nuremberg’s Südstadt-the statutory share claim can quickly reach six- to seven-figure amounts.

A combination of anticipated succession (transfer during the owner’s lifetime), a last will and testament, and, if necessary, notarized agreements waiving the statutory share offers the greatest flexibility. Agreements waiving the statutory share require the consent of the beneficiary and are only valid if notarized-a one-time payment or gift is often agreed upon in return. We work closely with notaries and tax advisors and recommend seeking advice early on, ideally ten years before a planned transfer of assets.

Frequently Asked Questions

Can the statutory share be excluded through a will?

You can disinherit a close relative through a will, but you cannot exclude the statutory share itself through a testamentary disposition. Only under very strict conditions (Sections 2333 et seq. of the German Civil Code (BGB), e.g., serious criminal offenses against the testator or their relatives, gross misconduct) can the statutory share be revoked. Alternatively, beneficiaries may waive their claim by means of a notarized statutory share waiver agreement-this requires their voluntary cooperation and is often accompanied by consideration.

When does the claim to a compulsory portion become time-barred?

The claim to a compulsory portion becomes time-barred after three years, beginning at the end of the year in which the beneficiary became aware of the opening of the succession and their disinheritance (Section 2332 BGB). The absolute statute of limitations is 30 years from the date of death. Heirs entitled to a compulsory portion should therefore assert their claims promptly and not wait for an amicable settlement without suspending the statute of limitations. Suspension can be achieved through negotiations, written acknowledgments, or the filing of a lawsuit.

How is the real estate value assessed for the compulsory portion?

The market value at the time of death, determined in accordance with the ImmoWertV, is decisive. The parties may agree on an appraisal; in the event of a dispute, a court-appointed expert is consulted. A professional appraisal by a certified real estate expert establishes a legally sound foundation from the outset. In Nuremberg, appraisal costs for a single-family home range from approximately 1,500 to 3,000 euros-an investment that can prevent protracted inheritance disputes.

Can the statutory share be paid in installments?

Unless otherwise agreed, the statutory share is due immediately. However, upon the heir’s request, the probate court may grant a deferral if immediate payment would cause undue hardship-particularly if it would require the sale of a property used for personal residence. The deferral is subject to reasonable interest. A mutual agreement on installment payments between the heir and the beneficiary of the statutory share is also possible and avoids court proceedings.

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