Inheritance law during separation: the riskiest period

The period in which nothing happens, and that is exactly the problem

Under family law, separation changes a lot at once: maintenance claims arise, cut-off dates are set, the Trennungsjahr (year of separation) begins to run. Under inheritance law, it changes nothing.

Until the divorce is final, your spouse remains your statutory heir (§ 1931 BGB) and is entitled to a compulsory share. Alongside children, your spouse inherits half if you live under the statutory property regime: a quarter as the statutory share and another quarter as a lump-sum Zugewinnausgleich (accrued gains) (§ 1371 BGB).

With the Trennungsjahr (year of separation) and the length of the proceedings, moving out and the decision are often eighteen months apart. During that time, the arrangements you made while the marriage was intact continue unchanged.

The exception: § 1933 BGB

The law does provide for an earlier cut-off. The surviving spouse’s right to inherit is excluded if both conditions were met at the time of death:

• The requirements for divorce were met, which as a rule means the separation year had run its course.
• The deceased had filed for divorce or consented to the other spouse’s petition.

If both apply, the statutory right to inherit ends, and with it the compulsory share, because that share requires a statutory right to inherit (§ 2303 BGB). Even so, the law does not leave the survivor unprotected: a maintenance claim under §§ 1569 to 1586b BGB can remain alongside it, as § 1933 BGB expressly states.

In practice, this means that filing the Scheidungsantrag (divorce petition) has an effect under inheritance law as well as under family law. If you are in a hurry for inheritance reasons, keep that in mind. And if you are still in the Trennungsjahr (year of separation), know that this threshold is not reached until it ends.

Still, you should not rely on § 1933 BGB alone. Whether the requirements were actually met at the time of death only becomes clear afterwards, and the dispute is then fought out among the surviving family.

The joint will

A joint will, especially the common “Berliner Testament” (spouses naming each other as sole heirs), generally loses its effect with the divorce, and already once the requirements of § 1933 BGB are met (§§ 2077, 2268 BGB).

“Generally” is meant literally here: if the will says otherwise, for example by expressly stating that it should also apply after a divorce, it remains valid. Such clauses are less common, but they do occur.

The safe route is therefore an express revocation. For a joint will, it has to follow a set form. While both spouses are alive, revoking mutually binding provisions follows the rule on withdrawing from an inheritance contract (§ 2271 (1) in conjunction with § 2296 BGB). You need a declaration recorded by a notary, and it has to reach the other spouse. The law expressly rules out canceling your own provision unilaterally by making a new will; quietly tearing up your own copy is certainly not enough.

An inheritance contract has its own rules; as a rule, only a withdrawal or a termination by mutual agreement is possible, also in notarial form.

What no one ends automatically

Besides the will, a whole series of documents stays in force, and few people think of them in the stress of a separation:

• Health care power of attorney and living will, because otherwise your separated spouse may keep deciding about your medical treatment.
• Bank and account powers of attorney, including those that continue after death.
• Beneficiary designations in life and pension insurance, because they follow neither the will nor the divorce decision and stay in effect after the divorce.
• Beneficiary designations in occupational pension plans and pension scheme rules.
• Succession clauses in partnership and shareholder agreements if you own business assets.

You can revoke a power of attorney at any time. Revoke it in writing, make sure it reaches the person you authorized, and inform the places where the power of attorney is on file, such as your bank.

The beneficiary designation in a life insurance policy is the classic case: it is in the contract, not in the will, and the insurer pays whoever is named there. If you change nothing, your former spouse remains the valid beneficiary, even years after the divorce.

After the divorce is final

Once the decision is final, your former spouse’s statutory right to inherit ends. Your heirs are then your children, otherwise your statutory heirs or the people named in your will.

This does not affect your children’s compulsory share. And if you make new arrangements after the divorce, remember that if you die, your minor children will be represented by the other parent. That is a reason to consider appointing an executor or setting rules for how the inheritance is managed.

What comes next

How the Zugewinnausgleich (accrued gains) in divorce proceedings differs from the lump-sum solution under inheritance law is explained in Assets and accrued gains. What applies to inherited assets in the equalization is covered in Property in the equalization of accrued gains.

When you can file the Scheidungsantrag (divorce petition) at all, and so when the threshold of § 1933 BGB comes within reach, is explained in Year of separation: when can you file for divorce?. And when the decision becomes final is set out in How does a divorce work?.