Elective Share Rules under German Inheritance Law (Pflichtteil)

German Testators cannot fully disinherit their Children and their Spouse. Not even their Parents for that matter!

It has always been a principle of German inheritance law that close relatives are entitled to a portion of the deceased’s estate, even if the deceased had expressly disinherited those close relatives in his or her Last Will and Testament. This is called “Pflichtteil” (section 2303 German Civil Code), which can be translated forced share or compulsory portion to the estate.While many states in the USA know a similar principle, namely the so called “elective share”, these US American elective share rules usually only apply to the surviving spouse. In Germany, however, not only the surviving spouse is entitled to claim the Pflichtteil (elective share), but also the testator’s descendants (children, grandchildren etc) and even his or her parents! Not, however, the testator’s siblings or even further removed relatives like nephews, nieces or cousins.

The German elective share is the statutory amount that a surviving spouse, descendant or parent may choose to take of the deceased’s estate as an alternative to what was provided (or rather: not provided) for him or her in the deceased spouse’s Last Will and Testament. Such election is not automatic and must be made within 3 years of gaining knowledge of having been disinherited (in practice, from issuing letters of administration, i.e. the German Erbschein). The Pflichtteil may be utilized if the Will leaves the spouse, child or parent less than he or she would otherwise receive by statute, i.e. German intestacy rules.

If a German testator wishes not to be bound by these elective share rules, he or she can agree with the spouse, child etc that they waive this right. However, such a elective share waiver agreement (Pflichtteilsverzichtsvertrag) is only valid if recorded by a German notary and it obviously requires some form of remuneration to motivate the relative to sign such waiver.

For more information on cross border probate matters, international will preparation and German inheritance tax matters see the below posts by the international succession law and tax law experts of German law firm Graf & Partners LLP:

Or simply click on the “German Probate” section in the right column of this blog.

The Anglo-German law firm Graf & Partners and its German-English litigation department GP Chambers was established in 2003 and has many years of experience with British-German and US-German probate and tax matters, including the representation of clients in contentious probate matters. We are experts ininternational succession matters, probate and inheritance law. If you wish us to advise or represent you in a German or cross border inheritance case please contact German solicitor Bernhard Schmeilzl, LL.M. (Leicester) at +49 941 463 7070.

Enforcing Foreign Judgments in the UK in Proceedings commenced on or after 10 January 2015

Procedure under the Recast Brussels Regulation

The enforcement provisions in the Recast Brussels Regulation will apply to the enforcement in England and Wales of judgments from other EU member states in proceedings instituted on or after 10 January 2015. One of the most important changes made on that date by the Recast Brussels Regulation was the abolition of exequatur, or the declaration of enforceability, which had to be obtained in the enforcing state under the 2001 Brussels Regulation. The changes, therefore, in principle make the enforcement procedure less time-consuming and costly. Reference to Articles in this section are to the Articles of the Recast Brussels Regulation.

Enforcement

The procedure is prescribed in Articles 39 to 44, and CPR 74.4A and CPR 74.9. It is as follows: Continue reading

German Wills: Does the Writing need to be in Capitals or can it be joined up?

Compared to English Wills a German style Will is shockingly short (see here) and it is either hand written by the testator him-/herself or recorded before a German notary (details see here). We are often asked whether the writing needs to be in capitals or whether it can be joined up.The answer is: The German will should be in the natural handwriting of the testator. The whole point of the holographic will is to prove that (in case anyone should challenge this) the will actually originates from the testator and has not been forged. German legal tradition does not like the idea of having witnesses because wills are considered to be private and confidential matter (“Privatsache”). Therefore, under German succession law, the personal handwriting of the testator (instead of witnesses) shall evidence that the will was really written by him/her. In short: Please do write as you would normally write, e.g. a love letter, a shopping list or a written exam.

For more information on German probate and inheritance law see these postings here.

The law firm Graf & Partners was established in 2003 and has many years of experience with British-German and US-German probate matters. If you wish us to advise or represent you in a German or cross border inheritance case please contact German solicitor Bernhard Schmeilzl, LL.M. (Leicester) at +49 941 463 7070