Changing or canceling a marital agreement

Can a marital agreement be changed later on?

Yes. Spouses may rearrange their property relations at any time during the marriage and cancel or change an existing property regime § 1408 (1) BGB. There is no deadline for this, and no reason is required.

A change takes the same form as the original agreement: notarization with both parties present at the same time § 1410 BGB. An addendum on a separate sheet, by email, or with two signatures under a text you drafted yourselves is void.

When an existing agreement is due for review

A marital agreement reflects the financial situation and the plans at the time it was notarized. If both shift considerably, the risk grows that one side will later invoke exercise review. These are the five occasions we see most often:

• A child arrives. The most common occasion and also the most important, because it brings childcare maintenance into play.
• The business changes. Taking it over, selling it or bringing in new shareholders changes the very value the agreement was meant to protect.
• A property is added, especially if both spouses are on the land register and only one of them pays the mortgage.
• You move abroad. This may change the property law that applies and which court has jurisdiction over later proceedings.
• The roles reverse. Whoever was the economically stronger party when the agreement was signed is not necessarily still so ten years later.

An appointment like this rarely takes long. Often a short addition, such as an opening clause for childcare maintenance, is enough to bring the agreement back in line with the marriage you actually live.

The first trap: canceling does not lead back to the statutory regime

If you cancel a marital agreement without replacing it, you do not automatically return to the statutory property regime. If spouses cancel or exclude the statutory regime, Gütertrennung (separation of property) applies unless the agreement provides otherwise § 1414 BGB. The same applies if only the Zugewinnausgleich (equalization of accrued gains) is excluded.

A return to the Zugewinngemeinschaft (community of accrued gains) therefore has to be agreed expressly. A sentence such as “The marital agreement dated … is canceled” is not enough; the deed has to state positively that the statutory regime applies from now on.

A second question is tied to this, and it is easily overlooked. Initial assets are the assets held when the property regime begins § 1374 (1) BGB. If you switch from a separate-property regime to the statutory regime after twelve years of marriage, the gains are counted only from that day. Everything built up before stays out. If an earlier reference date is to apply, it has to be written expressly into the deed.

The second trap: the effect on third parties

Since January 1, 2023, there has been no matrimonial property register. It had existed since 1900 and was abolished without replacement by the Act abolishing the matrimonial property register. In its place came a rule modeled on European matrimonial property law Art. 28 EuGüVO.

Since then, spouses can rely on their marital agreement against a third party only if that party knew of it or was unaware of it only through gross negligence § 1412 BGB. What matters is the time of the transaction in question.

For the self-employed, this has a very practical consequence. The register entry that used to reach every third party no longer exists, so the information has to reach your contracting partner some other way. If you want to rely on your Gütertrennung (separation of property), disclose it actively to the bank financing you, your commercial landlord and your co-shareholder. Keep a record that you did. Without that proof, even the finest deed does little good in a dispute with a creditor.

Can one spouse terminate the agreement alone?

No. A marital agreement is a contract, and like any contract it can only be changed or canceled by mutual consent. The law provides no unilateral right to terminate it, and a termination clause would hardly be compatible with the purpose of the agreement.

If you want out on your own, there are three routes, and all three are rocky. Rescission for fraudulent misrepresentation or unlawful threat § 123 BGB requires exactly that and is subject to a time limit. Interference with the basis of the transaction § 313 BGB only applies where the shared assumptions have fundamentally shifted. And judicial content review only takes effect in the divorce proceedings, which is late.

The standards that apply there are covered in When is a marital agreement invalid?.

Why assets are sometimes the reason for a switch

A change of property regime has a tax dimension as well as a family law one. If the Zugewinngemeinschaft (community of accrued gains) ends while both spouses are alive, the resulting equalization claim does not count as a taxable acquisition § 5 (2) ErbStG. In this way, assets can be shifted between spouses without triggering gift tax.

This arrangement is known as the Güterstandsschaukel (property regime swing), and it depends on conditions that need a detailed tax review. We are open about where our role ends. We handle the family law side, meaning the switch itself and the calculation of the equalization claim. The tax assessment belongs with a tax advisor. Both should be coordinated before the notary appointment.

When it becomes a divorce settlement agreement

After separation, the document gets a different name, and a different standard applies. The three areas then go into a Scheidungsfolgenvereinbarung (divorce settlement agreement): property regime, Versorgungsausgleich (pension rights adjustment) and maintenance. The marital home, household goods and the division of debts are often added.

The difference lies in the review. A precautionary marital agreement works with a forecast of how the marriage will develop, and that very forecast can prove wrong. During separation, by contrast, the facts are out in the open: both sides know the income, the assets and the childcare situation. In our experience, an agreement reached on that basis holds up better than one written fifteen years earlier with an eye to the future.

An existing marital agreement has not become worthless. It is the basis on which the negotiations for the settlement build, and anything it validly settles does not need to be renegotiated. What this later document covers is described on our page about the divorce settlement agreement.

What a change costs

The notary fee for a change follows the same logic as for the original agreement. It depends on the transaction value, meaning the assets the new deed covers, and it is set by law. A change is therefore not a cheap addendum; it is billed like an agreement of its own.

This leads to a practical tip. If you are already thinking about improvements in two places, settle both at one appointment rather than having two deeds notarized. How the fee is worked out in detail is explained in What does a marital agreement cost?. Which building blocks a deed should contain is set out in What goes into a marital agreement?.