How to adopt an Adult under German law. And why people do it.
Adopting an adult person (Erwachsenenadoption) is increasingly popular in Germany, especially in wealthy cities like Munich, Frankfurt or Berlin. Why so? Because a child — including an adopted adult — is entitled to claim the maximum German personal gift & inheritance tax allowance of EUR 400,000. More distant relatives, for instance nieces and nephews, only have a meager EUR 20,000 tax allowance available. Furthermore, the German gift tax rates differ extremely depending on the degree of kinship. Children and grandchildren find themselves in the German IHT tax category 1 (Steuerklasse 1) which starts at a tax rate of 7%, whereas more distant relatives or persons not related at all are taxed at 30% to 50%. More information on German inheritance tax and gift tax here.
Property prices have skyrocketed in cities like Munich, Stuttgart, Frankfurt or Berlin. And, more and more people in Germany do not have any children. When they get older, they are confronted with the fact that their estate will be heavily taxed when they write a distant relative or a friend in their will. Some will give their wealth to tax privileged charitable institutions. But others want to keep their wealth within the family or they want to give it to a good friend (or their children) without the German tax man taking a huge share of the estate.
Adoptions of an Adult are Tax driven
Thus, it is hardly surprising that wealthy German testators who do not have children of their own, look for ways to avoid or at least mitigate German gift tax and/or inheritance tax. The goal: If they successfully adopt the person to whom they want to gift or bequeath their wealth (i.e. distant relatives or friends), the without cutting the German tax man in with a hefty 30% share.
German Laws on Adoption
The legal requirements and the procedure of adoption is set out in sections 1741 et seqq. German Civil Code. The main focus of these German statutes on the issue of adopting minors. However, there is an entire chapter in the German Civil Code which deals with the adoption of adult persons (Annahme Volljähriger), s. 1767 to 1772 BGB. Section 1767 para. (1) German Civil Code sets out as the central requirement for such an adult adoption:
An adult person can be legally adopted as a child if such adotion is ethically justified, in particular if a de facto parent-child relationship has already developed.
There is manifold German case law on the question when such a “quasi parent-child relationship” does exist. The two parties must convince the German family court (Familiengericht) of such a close, permanent and durable relationship. Some courts in Germany are stricter than others, so the regional case law should be researched before making the aplication. The main criteria which German family courts apply to test this are:
- close personal relationship over a long period of time
- parent-child like age difference
- serious intention to care for each other in case of financial need or health problems
The intention to save taxes as such does, of course, not constitute grounds for an adoption. It does, however, not hurt if the court feels that this is an additional motivation (Nebenzweck). Still, judges are not naive and are thus well aware of the fact many applications for an adult adoption are tax driven. That’s why courts are sceptical and must be convinced that tax mitigation is not the only reason.
Court Procedure of German Adult Adoption
The formal application to adopt an adult (s. 1768 BGB) must be recorded before a German notary public who acts as a court official. I this application, the future parent and child should make an effort to lay out a convincing case for the family judge by describing their relationship in great detail. The application must explain why the relationship, for example between an aunt and her nephew, goes beyond a normal aunt-nephew relationship. This is not an easy task. Being a bit emotional and putting specific anecdotes in the application does not hurt.
Here is where most people trying to adopt an adult in Germany make the biggest mistakes. Sometimes, the initial application submitted by the parties is only one or two pages long and merely sets out in dry legal language for how long the parties know each other. This will hardly convince the family court of a genuine parent-child relationship. In these cases, the adoption application is doomed to fail because the family judge will be secptical of amendments made at a later stage.
If a participant to the adoption procedure has children of his/her own, these children will be heard by the family court and their interests must be taken into account (s. 1769 German Civil Code). The existing (biological) children of the person wanting to adopt someone will hardly be thrilled to hear about these plans. In addition to the difficult emotional aspects of being graced with a sibling by way of court order, such adoption of an additional child will also reduce their inheritance. Therefore, existing children will often object to the adoption plans of their father or mother and will write to the court that they dispute the existence of a true child-parent relationship. Therefore, the adoption plans should be openly discussed with the existing children. In some cases, the concerns raised by existing children can be solved by entering into legal agreements regarding their inheritance.
The spouse (or registered same sex partner) of the person to be adopted will also be included in the German adoption procedings and must give his/her formal consent to his/her spouse being adopted. The spouse of the person wanting to adopt an adult is not necessarily involved (this is a major difference to the proceedings of adopting a minor).
Effects of Adult Adoption under German Law
Once the German family court has issued the adoption order (Beschluss), the adopted position has the same legal position as a biological child would have. In contrast to the adoption of a minor, the legal relationship does, however, not extend to other family members (see s. 1770 BGB). Also, the adopted adult does not lose their legal ties to existing relatives.
The legal adoption also has risks, of course. Both the adopting parent and the adopted child are now financially responsible for each other, i.e. they must financially support each other in case of need (care home costs, unemployment etc).
By the way: Adult adoption does not help with immigration. The German Bundesverwaltungsgericht already ruled in 20006 (BVerwG, Entscheidung von 21.11.2006, AZ: 5 C 19/05) that an adult non-German person (for example a refugee living in Germany) who is being adopted by a German citizen, shall not be considered an Abkömmling (offspring) in the sense of article 116 German Grundgesetz (Constitution) and therefore does not fulfil the requirements of s. 40a Staatsangehörigkeitsgesetz. Adult adoption is thus not a fast track to German citizenship.
In case you consider to apply for adoption under German law, our experienced German family lawyers will be happy to advise and assist with the family court procedure. For terms and fees see here. Other posts on German family law issues:
- How to Divorce a German (and where)
- Challenging Paternity in Germany and the UK: A Comparison
- Alimony in Germany: Child Maintenance and Financial Support for Single Mothers
- Broken Engagement in Germany: Engagement Ring must be returned
Cross Channel Lawyers (CCL) is a network of German lawyers who specialise in German-British and German-American legal issues. CCL was established in 2003 by the German law firm Graf & Partners and its international litigation department GP Chambers. Our lawyers have many years of practical experience with British-German and US-German family law and probate matters, including the representation of clients in German litigation and arbitration proceedings. If you wish us to advise or represent you in a German or cross border legal matter please send an email or call us on +49 941 463 7070.