Shares, portfolios and employee stock in the equalization

At what value do shares count in the equalization of accrued gains?

Shares count at their price on the cut-off date. For the final assets, the cut-off date is the day the Scheidungsantrag (divorce petition) is served § 1384 BGB. What counts is the market value on that day § 1376 (2) BGB. For listed shares, the market value is the quoted price, and the same applies to funds and bonds.

As a rule, whatever happens to the price afterward does not change the calculation. If the portfolio drops by a third after the cut-off date, the equalization claim is still calculated on the higher value. If it rises, only the spouse who owns it benefits.

What was already in the portfolio when you married

Shares you brought into the marriage are part of your initial assets at their value at the time. Only the increase is equalized. So that mere inflation does not show up as a gain, the initial value is adjusted to the cut-off date using the consumer price index. Inherited or gifted shares also count toward your initial assets, even if you only received them during the marriage § 1374 (2) BGB. Here too, any increase in their value counts toward the gain.

Why the latent tax is deducted

The market value of the shares is reduced by the tax that a notional sale on the cut-off date would trigger. According to the Federal Court of Justice, this applies to all assets whose sale triggers tax, even if no sale is planned BGH, judgment of February 2, 2011, XII ZR 185/08. For shares bought after 2008, that tax is the flat-rate withholding tax (Abgeltungsteuer) on the capital gain. For shares a private investor bought before 2009, capital gains are generally tax-free, so no latent tax arises.

Joint portfolios and accounts

Unless you have agreed otherwise, a joint securities account counts half toward each spouse’s assets §§ 430, 742 BGB. If you transfer or sell securities from a joint account after the separation, you should document it.

Each spouse can demand disclosure of the other’s assets on the date of separation and on the cut-off date, backed by documents such as portfolio statements § 1379 (1) BGB. If the assets on the cut-off date are lower than on the date of separation, the spouse they belong to has to explain where the rest went § 1375 (2) sentence 2 BGB. More on this in Disclosure of your spouse’s assets: what you are entitled to.

Employee shares, RSUs and options

For employee shares and options, what matters is what is already certain on the cut-off date. Only legally protected positions with an economic value belong in the final assets. Mere prospects do not count BGH, decision of September 13, 2023, XII ZB 400/22.

• Shares already transferred to you count like any other security, even if a holding period is still running. Whether the lock-up lowers their value is a question of valuation.
• Promised shares that can still be forfeited, for example after a malus review or if your employment ends during the vesting period, are left out under this case law.
• Options that could already be exercised on the cut-off date count at their value. If it is certain on the cut-off date that a pending entitlement will become a full right, its value counts as well.

Which of these applies depends on the plan terms. So read the full rules of your plan, not just the summary on the employee portal. How deferred bonuses are treated is explained in Bonus payments and maintenance: how variable pay counts.

How the equalization is paid

The equalization is paid in money, because the equalization claim is a money claim § 1378 (1) BGB. If you cannot pay it from your account, you have to sell securities. The court can order shares to be transferred instead of money only in exceptional cases § 1383 BGB. An agreement that also allows for the tax on a sale is more common. How a large payment can be spread over time is described in Paying the equalization without breaking up the business.

The next step

At our office, attorney Dietrich Karcher handles questions about the equalization. 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 the further fees are calculated is set out under Costs. Our accrued gains calculator gives you a first overview, and our page on the equalization of accrued gains describes the framework.