Excluding or changing accrued gains in a marital agreement

How can you exclude the equalization of accrued gains?

By law, the Zugewinnausgleich (accrued gains) is the default, not an obligation. A marital agreement can modify or exclude it § 1408 BGB, before the wedding or in the middle of the marriage. You have two basic forms to choose from.

Gütertrennung (separation of property) is the radical one. It switches the equalization off entirely, clearly and simply, but in practice it is often too blunt. It can hit the financially weaker spouse hard. It also brings disadvantages in inheritance and tax law, for instance in a spouse’s statutory inheritance rights and in the tax-free equalization amount on death.

A modified regime is the finer route. It keeps the equalization in principle and steps in only where needed. It can take specific assets out of the calculation, such as the business or the company shares. It can cap the equalization claim, or settle in advance how it is paid, with installments, deadlines and security. That way the equalization stays in place where it is fair, and the substance of the business is protected at the same time.

Why accrued gains in particular can be contracted out

Not every consequence of divorce can be arranged with the same freedom. Courts rank them by how close they are to the core area of the law on the consequences of divorce. Maintenance for childcare and the Versorgungsausgleich (pension rights adjustment) lie close to the core and can be contracted out only to a limited extent. The Zugewinnausgleich (accrued gains) sits at the outer edge of that area and is the most open to free arrangement. That is why it is the most rewarding field for planning ahead.

The Federal Court of Justice’s line from 2025

Recently, the Federal Court of Justice made clear how far this freedom reaches BGH, decision of May 28, 2025, XII ZB 395/24. In an entrepreneur’s marriage, the Zugewinnausgleich (accrued gains) had been excluded through Gütertrennung (separation of property). The wife had given up her job to care for the children and later argued that the contract was contrary to public policy.

The court did not agree with her: excluding the equalization is not contrary to public policy in itself, not even with a traditional division of roles and a burden that falls on one side. An objectively unbalanced arrangement does not by itself show that the negotiation was unfair. A subjective imbalance has to be added, meaning a weaker negotiating position when the contract was signed that the other side exploited. Where that is missing, the contract remains valid.

When is the exclusion invalid?

The Familiengericht (family court) reviews marital agreements on two levels. The validity review looks at the moment the contract was signed § 138 BGB. Taking income, assets, the shape of the marriage and the effects on children together, does the contract place such a one-sided burden on one spouse that it cannot be upheld? Only objective one-sidedness and a subjectively weaker position together bring the contract down.

A second step, the enforcement review, looks at the moment the marriage breaks down § 242 BGB. Has life shifted so far, for instance through the birth of children and the childcare taken on, that relying on the contract today would be bad faith? If so, the court adjusts the legal consequence instead of setting the contract aside entirely.

Our practical advice

A marital agreement holds better the more balanced and transparent it is. Advice for both spouses, no pressure shortly before the wedding, a recognizable compensation for the weaker side: that is what makes it robust. If you want to protect the business without putting your partner at a disadvantage, a modified regime is almost always the better choice than plain Gütertrennung (separation of property).

If a business, a professional practice or a shareholding is involved, drafting the contract is only part of the picture. For the full context of valuation, liquidity and discretion, see divorce for entrepreneurs and executives (in German).

To give the negotiation a solid basis, it helps to look at the scale first. Our page on the equalization of accrued gains explains what you would be departing from. The post on valuing a business in the equalization of accrued gains shows how a business would be valued. If your main concern is keeping a later payment affordable, the exclusion may not be the right lever, but rather how the payment is made: paying the equalization without breaking up the business. Our page on the marital agreement covers its full scope, meaning property regime, pensions and maintenance.