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Prenuptial agreement
Excluding or modifying accrued gains by prenuptial agreement
Anyone with a business, shares or larger assets usually wants one thing above all: that a divorce does not eat into the substance. The statutory equalization of accrued gains often feels like an unalterable fate, when in fact it is only the statutory standard, which a prenuptial agreement may depart from. How far that freedom reaches, the Federal Court of Justice drew more clearly than ever in 2025.
Karcher Rechtsanwälte in Frankfurt am Main, Germany, focusing on uncontested divorce and international family law. Advice in German, English and Spanish.
Part of our guide Prenuptial agreementHow can the equalization of accrued gains be excluded?
The statutory equalization of accrued gains is the standard, not a compulsion. By prenuptial agreement it can be modified or excluded § 1408 BGB, before the marriage or in the middle of it. Two basic forms are available.
Separation of property is the radical one: it switches the equalization of accrued gains off entirely, clearly and simply, but in practice it is often cut too crudely. It can hit the economically weaker side hard and brings disadvantages in succession and tax law, for instance in a spouse’s rights of inheritance and in the tax-free treatment of accrued gains on death.
A modified regime is the finer route. It keeps the equalization in principle and intervenes only where necessary: it takes individual values out of the calculation in a targeted way, for instance the business or the company shares, caps the equalization claim, or settles the manner of payment in advance with instalments, deadlines and security. That way the equalization is preserved where it is fair while the substance of the business is protected at the same time.
Why the accrued gains in particular can be contracted out
Not every consequence of divorce can be arranged equally freely. The case law orders them by their proximity to the core area of the law on the consequences of divorce: maintenance for the care of children and the pension rights adjustment lie close to the core and can be contracted out only to a limited extent. The equalization of accrued gains stands at the outer edge of that area; it is the most accessible to free arrangement. That is why it is the most rewarding field for planning ahead.
The Federal Court of Justice’s line from 2025
How far that freedom reaches, the Federal Court of Justice recently made clear BGH, XII ZB 395/24. In an entrepreneur’s marriage the equalization of accrued gains had been excluded through a separation of property; the wife had given up her employment to care for the children and later considered the contract contrary to public policy.
The court did not agree with her: excluding the equalization of accrued gains is not contrary to public policy as such, not even where roles were distributed in the classic way and the burden fell one-sidedly. An objectively unbalanced arrangement does not yet indicate that the negotiation was unfair. A subjective imparity has to be added, that is an inferior negotiating position when the contract was concluded which one side exploited. Where that is missing, the contract stays valid.
When is the exclusion invalid?
The family court examines prenuptial agreements on two levels. The review of validity looks at the moment the contract was concluded § 138 BGB: does the contract, on an overall appraisal that takes in income, assets, the shape of the marriage and the effects on children, lead to a burden so one-sided that recognition has to be refused? Only objective one-sidedness and subjective inferiority together overturn the contract.
The review of its exercise looks at the moment of failure § 242 BGB: has the reality of life shifted so far, for instance through the birth of children and the care taken on, that it would be bad faith to rely on the contract today? The court then adapts the legal consequence instead of discarding the contract entirely.
The practical advice
A prenuptial agreement holds the more balanced and transparent it is. Advice on both sides, no situation of pressure shortly before the wedding, a visible compensation for the weaker side: that is what makes it robust. Anyone who wants to protect the business without disadvantaging their partner almost always chooses the modified regime rather than a plain separation of property.
Where a business, a practice or a shareholding stands behind it, drafting the contract is only part of the picture; the whole connection between valuation, liquidity and discretion is described by divorce for entrepreneurs and executives.
So that the negotiation has a basis, it is worth looking at the order of magnitude first: what you are departing from at all is explained by our page on assets & accrued gains, and how a business would be valued in the process is set out under business valuation in the equalization of accrued gains. Where your main concern is keeping a later payment bearable, the exclusion may not be the right lever but rather the manner of payment: paying the equalization without breaking up the business. The full frame of a prenuptial agreement, that is the property regime, pensions and maintenance, is dealt with by our page on the prenuptial agreement.
Whether separation of property, a modified regime or a combination is the right route depends on your assets and on the shape of your marriage. In this firm, Dietrich Karcher, attorney at law, handles the property regime and the valuation of what is to be protected; for the pension rights adjustment, maintenance and everything concerning children, Mieke Karcher, attorney at law, is responsible. In a confidential first conversation we draft an arrangement that protects and at the same time withstands judicial review.
Attorney at law · focus on family law
Admitted since 2010, more than fifteen years of experience in advising and representation. The contact for new instructions at Karcher Rechtsanwälte in Frankfurt-Gallus.
Legal notice: This article is provided for general information and does not replace legal advice in an individual case. Any laws, deadlines and amounts mentioned reflect the state of affairs at the time of publication and may change. A binding assessment requires a personal consultation.