Bitcoin and other crypto assets in the equalization of gains

Do crypto assets count in the equalization?

Yes, crypto assets count. The Zugewinnausgleich (equalization of accrued gains) takes in all of each spouse’s assets, and bitcoin, ether or tokens are assets just like shares or gold. It makes no difference whether they sit on a trading platform, in an app or in a wallet on your own device.

What matters is the value on the cut-off date. For the final assets, that is the day the Scheidungsantrag (divorce petition) is served § 1384 BGB. The valuation uses the market value on that day § 1376 (2) BGB. For common crypto assets, that is the price at which they could have been sold that day.

Which price counts when trading never stops?

What counts is the price on the cut-off date, recorded with the time and the source. Crypto assets trade around the clock, and there is no official closing price. Prices also differ from one platform to the next. With a 10 percent swing in a single day, that makes a noticeable difference for larger holdings.

Agree early on a source, for example the price on the platform where the coins are held, at a fixed time. If you cannot agree, the court decides, with an expert if necessary. For thinly traded tokens, the price on the screen may promise more than a sale would actually bring in. What counts then is the amount that could realistically have been obtained on the cut-off date.

A crash after the cut-off date changes nothing

If the price falls after the Scheidungsantrag (divorce petition) is served, the equalization claim is still calculated on the higher value. On divorce, the law fixes the cut-off date not only for the calculation but also for the cap on the claim § 1384 BGB. If the price rises, the gain likewise goes only to the spouse who owns the coins.

The risk is greater with crypto assets than with a share portfolio. If you hold a lot of crypto, consider selling part of it after the cut-off date so that you can pay the claim later. Only in rare exceptional cases can payment be refused on grounds of gross unfairness § 1381 BGB. Whether a price crash is enough, the Federal Court of Justice has left open; it points to this hardship clause for such cases BGH, judgment of July 4, 2012, XII ZR 80/10.

When a latent tax is deducted

A latent tax is deducted if a hypothetical sale on the cut-off date would trigger tax. According to the Federal Court of Justice, this applies to every asset whose sale costs tax BGH, judgment of February 2, 2011, XII ZR 185/08; BGH, decision of December 8, 2021, XII ZB 402/20.

For crypto assets held privately, the tax depends on the holding period. A gain is taxable only if no more than one year passes between purchase and sale § 23 (1) sentence 1 no. 2 EStG. Coins held for more than a year on the cut-off date therefore enter the final assets without any deduction. For more recent purchases, the tax is deducted at your personal rate. If your gain from all private sales in a calendar year stays below €1,000 (below €600 until 2023), it remains tax-free § 23 (3) sentence 5 EStG. If you trade often, stake or lend coins, have a tax advisor look at the tax question.

This describes current law as of October 2026. The Federal Ministry of Finance plans to tax gains on crypto assets bought from 2027 onward regardless of the holding period. Older holdings are to remain under the previous rules. Nothing has been enacted yet. If the reform comes, a latent tax will always apply to newly bought coins.

What you owned before the wedding

Crypto assets you brought into the marriage are listed in the initial assets at their value at that time. Only the increase is shared. With bitcoin bought years ago for a few hundred euros, however, that increase can make up almost all of today’s value.

You have to prove your initial assets. Without a joint inventory, the law presumes that all of your final assets are gains § 1377 (3) BGB. Secure the transaction history of your wallets and the platform statements for your wedding day. What can still be retrieved after years depends on the provider. Crypto assets you inherited or received as a gift during the marriage are added to the initial assets at their value when acquired. A later rise in price counts as gain § 1374 (2), § 1376 (1) BGB.

How hidden wallets are found

Hidden wallets are found through disclosure. From the separation onward, each spouse can demand information from the other about their assets on the day of separation § 1379 (2) BGB. Once the Scheidungsantrag (divorce petition) has been filed, information on initial and final assets is added, and supporting documents can be requested § 1379 (1) BGB. This includes crypto assets, with the platform, the wallet and the holdings.

Clues to undisclosed holdings often turn up elsewhere:

• Bank statements showing transfers to trading platforms or card payments there,
• joint tax returns that list gains from crypto transactions as private sales,
• emails and apps from platforms on shared devices, though you may not simply read their contents.

If there is reason to believe that the information was not given with due care, the other spouse can demand that it be affirmed in lieu of an oath § 260 (2) BGB. A false affirmation is a criminal offense. How disclosure works in detail is covered in Disclosure of your spouse’s assets: what you are entitled to.

Moved, given away, supposedly lost

If the assets on the cut-off date are lower than stated in the disclosure for the day of separation, the burden of proof lies with the spouse who owns them. They have to show that they did not give anything away, squander it or set it aside to the other’s detriment § 1375 (2) sentence 2 BGB. That applies to coins moved to an unknown wallet after the separation as much as to the supposedly lost private key.

If they cannot, the missing amount is added to the final assets. The same applies to assets a spouse gave away, squandered or disposed of in order to disadvantage the other § 1375 (2) sentence 1 BGB. Wallets already missing from the separation disclosure are not caught by this rule. So request the separation disclosure early and record the holdings on the day of separation yourself, with screenshots and the public wallet addresses, as far as you know them.

How the equalization is paid

The equalization is paid in money § 1378 (1) BGB. The Familiengericht (family court) can order the transfer of specific items only in exceptional cases § 1383 BGB. Instead of money, you can also agree on a transfer of coins. For tax purposes, such a transfer usually counts as a sale and trigger tax within the one-year period. Clarify that beforehand.

If you want to keep crypto assets out of the marriage, you can do so in a marital agreement, even after the wedding. How that works is described in Excluding or changing accrued gains in a marital agreement. How shares and funds are treated is set out in Shares, portfolios and employee stock in the equalization.

The next step

At our office, attorney Dietrich Karcher handles questions about the equalization. The first consultation costs up to €190 plus VAT, at most €226.10 in total. If we take on your case, this fee does not apply. How the further fees are calculated is set out under Costs. Our accrued gains calculator gives you a first overview, and our page on the equalization of accrued gains describes the framework.