Property regime clause: when shareholders need a marital agreement

What is a property regime clause?

A property regime clause (Güterstandsklausel) is a provision in the articles of association that requires married shareholders to take their share out of the Zugewinnausgleich (equalization of accrued gains) by marital agreement. It often leaves a choice between Gütertrennung (separation of property) and a modifizierte Zugewinngemeinschaft (modified community of accrued gains). The company cannot force a shareholder to conclude a marital agreement. It does, however, set a deadline for the proof and attach a consequence to its absence.

You will mostly find such a clause in a Familiengesellschaft (family-owned company) or in a GmbH (German limited liability company) with only a few shareholders. It can also affect shareholders who are already married, for example when they join the company or when the clause is added to the articles later on.

Why companies require a marital agreement

A company wants to prevent a shareholder’s divorce from spilling over into the business. There are three ways a divorce can do that:

• Liquidity. The equalization claim is a money claim that arises when the property regime ends, which in a divorce means when the divorce becomes final § 1378 (3) sentence 1 BGB. If the wealth is tied up in the share, the shareholder has to raise cash through withdrawals, loans or the sale of shares. How such a payment can be spread out is described in Paying the equalization without breaking up the business.
• Disclosure. Valuing the share takes annual financial statements and projections. The other spouse has a right to disclosure § 1379 BGB, and in a dispute an expert sees the company’s figures. How the valuation works is set out in How is a business valued in the equalization of gains?
• Consent. Under the statutory property regime, a spouse needs the other spouse’s consent to commit to disposing of their assets as a whole § 1365 (1) BGB. If the share makes up almost all of those assets, this can block a sale or a transfer.

When a shareholder dies, an equalization claim can also burden the heirs § 1371 (2) BGB. The clause is meant to close off all of these routes.

What happens if you do not provide proof?

If you do not provide proof, the articles of association determine the consequences. Usually, they provide for compulsory redemption of the share § 34 GmbHG or expulsion from the company, each in return for compensation. If the articles set that compensation below market value, a missing marital agreement costs more than any notarization would.

So read three details in the clause closely:

• which property regime is sufficient and whether the consent requirement under § 1365 BGB has to be excluded,
• by what date the proof has to be provided, counted from the wedding or from joining the company,
• in what form the company wants it, for example as a certified copy or as a confirmation from the notary.

Which marital agreement satisfies the clause

What counts is the wording of the clause, and it often allows a modifizierte Zugewinngemeinschaft (modified community of accrued gains) that excludes only the share. Everything else remains subject to the equalization. Gütertrennung (separation of property) usually satisfies the clause as well, but it is the blunter tool, with drawbacks for inheritance and inheritance tax. Both routes are compared in Excluding or changing accrued gains in a marital agreement.

For a company share, the deed should expressly cover four things:

• the share itself and any increase in its value, including after a capital increase or a reorganization,
• whatever takes its place, such as the proceeds of a sale or shares in a successor company,
• shareholder loans and assets you make available to the company, such as real estate you lease to it,
• the exclusion of the consent requirement under § 1365 BGB for dispositions of the share.

Which other building blocks a marital agreement needs is set out in What goes into a marital agreement?

What the clause means for the other spouse

The other spouse is not bound by the articles of association, and the marital agreement requires their consent. Consenting means giving up the equalization of the asset that grows fastest in many business owners’ marriages. A fair agreement therefore closes two gaps through which further assets can slip into the protected part:

• Contributions from private assets. If money flows from private assets into the company during the marriage, for example as a capital contribution or a new loan, it leaves the equalization calculation along with the protected share. The agreement can count such payments back toward the remaining assets.
• Retained profits. If the company distributes nothing, only the protected share grows, while the private assets stand still. For that case, the agreement can provide for an adjustment.

On top of that, there is often something in return, such as real estate, retirement savings or an arrangement on maintenance. The Zugewinnausgleich (equalization of accrued gains) is the consequence of divorce that can be arranged most freely. Taking out the share usually holds up under judicial review BGH, decision of May 28, 2025, XII ZB 395/24. It becomes risky when the draft also waives maintenance and the Versorgungsausgleich (pension rights adjustment). What the other side should check in such a draft is set out in Handed a marital agreement: sign it or have it reviewed?

Is a property regime clause valid at all?

As a rule, a property regime clause is valid. Under the prevailing legal view, such clauses are permissible. A clause is invalid only if its requirements could be met by nothing but a marital agreement that is contrary to public policy. And if the company expels a shareholder for not providing proof, it owes them compensation. If you want to challenge the clause, your dispute is with your fellow shareholders. The practical route is almost always a marital agreement that satisfies the clause and is still fair.

When you should act

Ideally, act before the wedding or before you join the company, so that the deadline does not put you under pressure. But a marital agreement can also be concluded during the marriage § 1408 (1) BGB. What happens to the gain built up before the agreement is described in Marital agreement after the wedding: what is still possible.

At our firm, attorney Dietrich Karcher handles the property regime, business assets and valuation, and attorney Mieke Karcher handles maintenance and the Versorgungsausgleich (pension rights adjustment). Bring the following to the consultation:

• the articles of association with the property regime clause and the deadline running under it,
• the company’s most recent annual financial statements,
• a rough overview of both sides’ income and assets.

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 further fees are calculated is set out under Costs. Our page on divorce for business owners describes how valuation, liquidity and discretion fit together in a divorce, and our page on the marital agreement covers the framework of such an agreement.