The Berlin Will: A Tax Trap for Children

The Berlin Will is the most commonly used will template in Germany-and at the same time, a frequently underestimated tax trap for children. Couples in Erlangen who provide for each other and name their children as final heirs thereby trigger a significant inheritance tax liability upon the second death, which could easily have been avoided with early planning. What is well-intentioned becomes a problem when the total estate exceeds the tax-exempt thresholds-and in Erlangen, with one of the most dynamic real estate markets in Middle Franconia, this is the case for many owner-occupied families.

Legal Basis: Section 2269 of the German Civil Code (BGB) and the Residual Heir Clause

The Berlin will is governed by Section 2269 of the German Civil Code (BGB). It is a joint will that may be drawn up exclusively by spouses or registered partners. The typical clause reads: “We appoint each other as sole heirs. The heirs of the last to die shall be our children in equal shares.”

This arrangement does not take its name from Berlin, but was historically particularly widespread there. Its purpose is to provide comprehensive security for the surviving spouse-he or she inherits everything without having to immediately account for it to the children.

The legal binding effect arises under Section 2271 of the German Civil Code (BGB): After the death of one spouse, the surviving spouse can no longer unilaterally revoke the joint will, provided they have accepted the inheritance. They are bound by the final disposition of the estate-they can no longer disinherit the children, nor can they appoint new heirs. This significantly restricts their testamentary freedom and can become problematic in a second marriage.

The probate court at the Erlangen Local Court opens the joint will after the death of the first spouse. At this point, it also becomes clear whether there are reciprocal dispositions that bind the surviving spouse.

The Tax Trap: Figures and Comparison for 2026

The problem lies in the failure to utilize the child allowances upon the first death. The inheritance tax allowance for children is 400,000 euros per child and per parent-that is, a total of 800,000 euros per child across the entire estate of both parents. With a Berlin will, nothing is inherited upon the first death; the children receive everything at once upon the second death, but can only claim the allowance once more.

Scenario	Total Assets	Tax with Berlin Will	Tax with Optimized Planning
2 children, total estate €800,000	€800,000	€0 (1st death) + €0 (2nd death, 2 × €400,000)	€0 (identical to optimal)
2 children, total estate €1,200,000	€1,200,000	€0 (1st death) + 2 × 11% on €200,000 = €44,000	€0-€11,000 (bequests upon 1st death)
2 children, total estate €2,000,000	€2,000,000	€0 (1st death) + 2 × 15% on €400,000 = €120,000	approx. €20,000-40,000 with optimization
Property value in Erlangen €900,000	€1,500,000 total	approx. €110,000 tax upon second death	approx. €30,000-50,000 with optimization

Source: Inheritance Tax Act §§ 1, 9, 15, 16, 19; Civil Code § 2269; Bavarian Justice Portal, Bavarian Chamber of Notaries, as of Q1/Q2 2026.

In the Erlangen area-where single-family homes in Büchenbach-Nord or Häusling cost €700,000-€950,000-the total assets of an average homeowner family quickly exceed the threshold at which the Berlin will becomes significantly disadvantageous from a tax perspective.

The Problem of the Statutory Share: A Dilemma for the Children

With a Berlin will, the children generally have the right to claim their statutory share after the death of the first parent-because they formally inherit nothing. The statutory share amounts to half of the legal inheritance.

Many Berlin wills contain the so-called compulsory portion penalty clause (also known as the Jastrow clause): If a child claims their compulsory portion after the first death, they will be disinherited upon the second death of the surviving spouse or will receive only the compulsory portion. This puts the children in a real dilemma:

If they claim the statutory share now (upon the first death), they receive money but risk being disinherited upon the second death-which can be more costly in the long run. If they waive the statutory share, they are bound to the status of final heirs but cannot utilize the tax-free allowance upon the first death.

This dilemma is particularly real in blended families or when the relationship with the surviving parent is uncertain.

Practice: Alternative Structures at the Notary in Erlangen

To defuse the tax trap of the “Berlin will,” several instruments are available that notaries in the Middle Franconia district routinely use.

Advance Bequest: Upon the death of the first spouse, each child receives an advance bequest equal to the inheritance tax exemption (up to 400,000 euros per child). This is done, for example, by transferring a share of real estate or a sum of money. The surviving spouse inherits the remainder. The children utilize their exemption without placing a financial burden on the surviving spouse.

Optional bequest: The children are given the right to choose, upon the first death, whether to accept a specific bequest (e.g., a property or a sum of money) or to waive it. This allows them to decide based on their tax situation.

Marital Property Regime Switch: Shortly before the death of one spouse, the partners switch from the community of accrued gains to the separation of property regime. This triggers a claim for equalization under matrimonial property law, which remains tax-free upon the first death (Section 5 of the Inheritance Tax Act) and significantly reduces the inherited estate. The matrimonial property swing is an effective but technically complex tool.

> A current valuation of the Erlangen property forms the basis of every optimization consultation. The valuation tool from leadmarkt.ch provides a data-driven assessment-also indispensable for tax planning.

Modified Berlin Will: Instead of the classic model, a Berlin will can be structured with built-in bequests, exemption clauses, and options-this preserves the protective function for the surviving spouse while simultaneously utilizing tax loopholes.

Right to Amend and Flexibility

Anyone drafting a Berlin will today should include a right to amend. This allows certain aspects of the will to be adjusted after the death of the first spouse. Without a right to amend, the surviving spouse is fully bound by the decisions made jointly.

In practice, one often sees wills that allow the surviving spouse to distribute individual assets differently (e.g., bequeathing a specific property to a specific child), even if the basic structure of the final distribution is fixed.

The Erlangen Local Court, acting as the probate court, examines upon the opening of the will which dispositions are reciprocal (binding) and which are unilateral (modifiable). This distinction is decisive for the surviving spouse’s scope of action.

Local Nuance: Erlangen - High Real Estate Values and Tax Implications

In Erlangen, real estate values are so high that the “Berlin will” actually becomes a tax problem for many families. The 2026 Erlangen housing market shows prices ranging from €4,500-5,800 per square meter for existing properties and up to €7,000 per square meter for new construction projects on the Siemens Campus or near Röthelheimpark. A single-family home in Erlangen-Bruck or Spardorf costs €700,000-€1,100,000.

If a married couple owns such a home and has additional savings of €200,000-€300,000, the total estate upon the second spouse’s death will significantly exceed the children’s tax exemptions. The Erlangen Local Court, as the probate court, and the notary offices in the Middle Franconia notary district are the right points of contact for tax-optimized planning.

The University of Erlangen-Nuremberg and the Siemens Campus attract a demographic that tends to plan early and is well-versed in tax implications-which makes the demand for optimized will solutions in Erlangen above average.

Conclusion for Married Couples in Erlangen

The Berlin Will is a solid basic tool-but for married couples with real estate assets exceeding 700,000 euros, it can prove costly. Tax optimization through advance bequests, the “marital property swing,” or modified final heir clauses almost always pays off when the assets in question are substantial. The difference between a non-optimized will and a tax-optimized will can amount to 50,000-150,000 euros in Erlangen.

A notary specializing in inheritance tax can quickly calculate the difference. Before the notary appointment takes place, it is advisable to obtain a current appraisal of the real estate value. The valuation tool from leadmarkt.ch provides this basis for Erlangen-quickly, data-driven, and without an appointment.

Berlin Will and Remarriage: A Special Risk

Another frequently underestimated risk of the Berlin will: What happens if the surviving spouse remarries? The survivor is bound by the final inheritance provision for the joint children-but they can still grant the new spouse significant advantages through the Berlin will upon entering into a second marriage.

If the surviving spouse draws up a new Berlin will with the second spouse (which is only possible to a limited extent due to the binding effect of the first will), a conflict arises between the binding effect of the first will and the claims arising from the second.

In Erlangen practice, such scenarios regularly lead to complicated inheritance disputes following the second death. The first Berlin will binds the surviving spouse regarding the children from the first marriage, but he has more freedom regarding the additional assets he earns or receives after the first death. A detailed analysis of what is bound by the first Berlin will and what is not should be conducted with a notary.

When the Berlin Will Is Still a Good Idea

Despite all the tax disadvantages, the Berlin Will has clear strengths that make it the best tool for certain family situations.

It is ideal when the total estate falls below the exemption limits: A married couple with a home valued at 600,000 euros and two children has a total estate of less than 2 × 400,000 euros = 800,000 euros in child exemptions-and pays no inheritance tax upon the second death. In this case, the Berlin Will is cost-effective and straightforward.

It is also well-suited when the surviving spouse must be fully financially secured and there is no risk that children will assert claims to a compulsory share. In close-knit families without conflicts, the Berlin Will works smoothly across generations.

And it is suitable when the family regards the house as the family home and none of the children would sell it-the tax burden upon the second death is accepted due to the family’s emotional bond.

The tax optimization gap only arises when the estate significantly exceeds the tax-free allowances-and in Erlangen, this happens more quickly with real estate ownership than elsewhere. A brief consultation with a notary will reveal whether the Berlin will is the right choice for the specific family situation or whether adjustments are advisable.

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Prepared by the my-home.de editorial team in collaboration with regional real estate analysts. Data as of: Q1/Q2 2026.