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Inheritance
Inheritance law in separation and divorce: the most dangerous period
Between moving out and the final court order there often lie eighteen months. During that time everything in inheritance law stays as it was: the separated spouse inherits, holds powers of attorney and remains the beneficiary of the life insurance. This article shows what can be changed about that, and when.
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 Assets & accrued gainsThe period in which nothing happens, and that is exactly the problem
In family law the separation changes a great deal at once: maintenance claims arise, cut-off dates are set, the year of separation runs. In inheritance law it changes nothing.
Until the divorce becomes final, your spouse remains a statutory heir (§ 1931 BGB) and entitled to a compulsory share. Alongside children they inherit half where you live in the statutory matrimonial property regime: a quarter as their statutory share and a further quarter as a flat-rate equalization of accrued gains (§ 1371 BGB).
Between moving out and the court order there often lie eighteen months, counting the year of separation and the duration of the proceedings. During that time the order dating from the intact marriage continues unchanged.
The separation takes effect in family law at once and in inheritance law not at all.
The exception: § 1933 BGB
The statute knows one earlier caesura. The surviving spouse’s right of inheritance is excluded where at the time of death both conditions were met:
- The conditions for the divorce existed, as a rule therefore the year of separation had run.
- The deceased had applied for the divorce or consented to the other’s application.
Where both are present, the statutory right of inheritance falls away, and with it the compulsory share, because that presupposes a statutory right of inheritance (§ 2303 BGB). The statute nevertheless does not leave the survivor without protection: a maintenance claim under §§ 1569 to 1586b BGB can continue to exist alongside, as § 1933 BGB expressly makes clear.
In practice that means the divorce application, once filed, has an effect in inheritance law as well as in family law. Anyone in a hurry for reasons of inheritance law should keep that in mind, and anyone still in the year of separation should know that this threshold has not been reached until then.
You should not rely on § 1933 BGB alone, though. Whether the conditions actually existed at the time of death is clarified only afterwards, and the dispute about it is then fought out among those left behind.
The joint will
A joint will, in particular the widespread “Berliner Testament”, loses its validity in principle with the divorce, and already where the conditions of § 1933 BGB are met (§§ 2077, 2268 BGB).
“In principle” is to be taken literally here: where the will contains a departing provision, for instance the express wish that it should apply after a divorce as well, it stays valid. Such clauses are rare but they do occur.
The safe route is therefore express revocation. With a joint will it is bound to a form: during the lifetime of both spouses the revocation of mutually dependent dispositions follows the provision on withdrawal from a contract of inheritance (§ 2271 (1) in conjunction with § 2296 BGB); what is required is therefore a declaration recorded by a notary and its receipt by the other spouse. What is expressly excluded is cancelling your own disposition unilaterally through a new will; quietly tearing up your own copy is all the less sufficient.
For a contract of inheritance, rules of its own apply; there, as a rule, only a withdrawal or a cancellation comes into question, likewise in notarial form.
What nobody else ends automatically
Alongside the will, a whole series of declarations continues to run that hardly anybody thinks of in the stress of a separation:
- An advance care directive and a living will, since otherwise your separated spouse may continue to decide about your medical treatment.
- Bank and account authorizations, including those granted beyond death.
- Beneficiary designations in life and pension insurance policies, since they follow neither the will nor the divorce order and continue to take effect after the divorce.
- Designations in occupational pension schemes and in pension regulations.
- Estate-related provisions in partnership agreements where there are business assets.
The beneficiary designation in a life insurance policy is the classic case: it stands in the contract, not in the will, and the insurer pays the person entered there. Anyone who changes nothing has effectively benefited their former spouse, including years after the divorce.
After the divorce becomes final
With the final order the former spouse’s statutory right of inheritance ends. The heirs are then the children, otherwise the statutory heirs or those named in the will.
The children’s compulsory share is untouched by that. And anyone making new arrangements after the divorce should remember that minor children are represented in a case of succession by the other parent; a reason to think about executorship or an administrative directive.
What comes next
How the equalization of accrued gains in divorce proceedings differs from the flat-rate solution in inheritance law is shown by assets & accrued gains. What applies to inherited assets in the accrued gains is set out by the property in the equalization of accrued gains.
From when the divorce application can be filed at all, and with it the threshold of § 1933 BGB comes within reach, is clarified by year of separation: when can you file for divorce?. And when the order becomes final is set out in how does a divorce work?.
This article deals with the consequences of a separation in inheritance law in overview. Drafting a will or revoking mutually dependent dispositions belongs in separate advice on inheritance law, as a rule with a notary involved. We tell you which steps are urgent in your case and in which order they should be taken.
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.