If there is no inheritance arrangement (e.g. by means of a will or inheritance contract), statutory inheritance law applies. The “statutory model” reflects the general concepts of justice and principles of the German legal succession system. Statutory inheritance law contains a comprehensive system of rules that establishes an appropriate balance of interests and a fair distribution of assets, even without a last will and testament.
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Quick Summary
- If no specific inheritance arrangements have been made in a will, the estate does not remain unsettled; instead, statutory inheritance law applies.
- Statutory inheritance law stipulates a clear and continuous allocation of the estate.
- Statutory inheritance law is society’s generally accepted model for the distribution of estates.
- Priority legal heirs are the genetic relatives of the deceased.
- Their hierarchy is determined by the so-called “parental order”.
If the testator has not made any voluntary (i.e. individually determined) succession arrangements, this does not mean that the distribution of the estate remains unregulated. Rather, in such cases, statutory inheritance law applies.
What is the relationship between “voluntary” and “statutory” succession?
Testate succession means that the testator has made an arrangement regarding the distribution of the estate according to their personal wishes. This is carried out in a will or an inheritance contract. In this respect, the so-called “testamentary freedom” is an expression of the freedom to independently regulate one’s own property matters – even after death. In principle, the testate right of inheritance takes precedence over the statutory (intestate) right of inheritance. However, if the testator has failed to make a formally valid will during his or her lifetime, the principles of intestate succession apply.
What is the purpose of the statutory regulation of succession?
To understand the legal need for a binding regulation of succession, even in the absence of a will, this article is preceded by a brief discussion of three basic concepts of German inheritance law: “universal succession”, “immediate succession” and “self-acquisition”.
Principle of universal succession
According to the principle of universal succession standardized in Section 1922 of the German Civil Code (BGB), upon the death of a person (succession), their assets (inheritance) are transferred in their entirety to one or more persons(heirs). The heirs are simultaneously liable for all liabilities of the estate. This means that rights and obligations, claims and liabilities are transferred to them in equal measure.
Immediate succession or accrual principle
The principle of immediate succession or accrual stipulates that the estate must be assignable to one or more persons without interruption as an entirety of all items and rights of the deceased. For legal transactions, it must be at least theoretically clear who is entitled to the estate and who is obliged by it.
An unclear legal assignment would be unacceptable for various reasons: creditors of the deceased have a legitimate interest in knowing who they can turn to. Furthermore, the aim is to prevent third parties who are not entitled to succession from misappropriating the estate. Finally, the state should be able to see who is responsible for the care and safety of the estate, e.g. who can be called upon by the authorities to maintain a house that is in danger of collapsing.
The concept of a “lying”, i.e. a temporarily unregulated inheritance, as it existed in Roman law, for example (so-called “hereditas iacens”), is fundamentally alien to German inheritance law.
Principle of the “self-acquisition”
The principle of “self-acquisition” gives effect to the aforementioned principle of immediate succession: the heirs assume the legal status of the deceased at the time of inheritance, without requiring any involvement on their part or the action of third parties (e.g. an authority).
If a person appointed as an heir wishes to dispose of any inheritance liabilities, they must therefore actively disclaim the inheritance they have received. This is the case, for example, if the deceased has left debts.
“The king is dead – long live the king”
Thus, there is a general need to distribute the assets and burdens of the estate even in the absence of an individual succession plan. Similar to the saying “le roi est mort – vive le roi”, this is intended to ensure continuity in the allocation of rights, duties and assets to individuals.
Who inherits in the event of intestate succession?
The statutory distribution of estates follows the (straightforward) range of standards set out in Sections 1924 to 1936 BGB.
“The estate runs with the blood”
These follow the social model according to which relatives of the deceased in the genetic sense (so-called “cognatic” family) should primarily be appointed as heirs. In the German legal tradition, this is illustrated by the saying: “The estate runs with the blood”: The blood-related family as a community of care and responsibility enjoys special constitutional protection in Art. 6 para. 1 of the German Basic Law and is therefore also the primary group of persons in matters of legal succession.
This means that spouses acc. § 1931 BGB and registered civil partners acc. § 10 LPartG only inherit alongside cognate relatives (see below).
Sections 1589 et seq. of the German Civil Code regulate the law of kinship and descent. In the case of adoption , the relationship is fictitious in the genetic sense, i.e. legally assumed.
Succession according to the “parental” system
The prevailing structural principle of intestate succession is the so-called parental order. A parental is a group of people who share a common descent from the deceased person. The decisive factor here is not proximity by degree, as in French law, for example, but the number of generations that must be traced back to the next jointly related person .
- The first parental group inculdes direct descendants, i.e. the children of the deceased.
- The second parental group consists of parents and their descendants (i.e. sisters and brothers, nephews and nieces).
- The third parental consists of grandparents and their descendants (i.e. aunts and uncles, cousins).
Parental hierarchy
Parentals are placed in a certain order of priority with regard to their entitlement to inherit. In accordance with Section 1930 of the German Civil Code (BGB) , a preceding parental group excludes its subordinate group from the order of succession. If there is a direct descendant of the deceased at the time of inheritance (heir of the first order of parentals), all other relatives of other orders of parentals, e.g. living parents of the deceased, are excluded from succession.
Headboard, representation and entrance principle
Within a parental group, the estate is generally distributed equally among the heirs according to head shares.
This is supplemented by the so-called principle of representation: living descendants , as representatives of their family line, supersede all more distant descendants related to the testator through them. For example, the living only daughter of a testator inherits alone and displaces her own children (i.e. the grandchildren of the testator) from the line of succession.
In the event of the predecease of the children of the testator, their descendants take over the inheritance rights of their parents (the so-called “Eintrittsprinzip”, step-in principle). The deceased’s grandchildren then divide the share of the inheritance to which their mother or father would have been entitled as a direct descendant. There is hence no division between the children and grandchildren of the deceased according to head shares. If, for example, one of the (single) testator’s three children has predeceased her and has left two descendants, they inherit 1/6 each as grandchildren of the testator and the remaining children of the testator inherit 1/3 each.
Accordingly, the principle of representation and entry also applies to the second and third parentel groups. This means that parents, siblings or grandparents of the testator who are still alive exclude their own descendants from succession.
Examples of statutory inheritance law according to various parental orders
Succession according to the first order with a living child
Testator A dies and leaves two children K1 and K2, each with two children E1-E4. The direct descendants K1 and K2, who are more closely related to the testator, each exclude their children from the succession as representatives of their lineage and inherit ½ each. (For the sake of clarity, the inheritance rights of a possibly still living wife of A are excluded here and dealt with below).
Succession according to the first order in the case of a predeceased child
Testator A dies. At the time of her death, only K1 of her two children is still alive. K2 has predeceased A and left behind two children E1 and E2 who were still alive at the time of A’s death. They succeed to the inheritance rights of the predeceased K2 to the extent that they exist in addition to the inheritance share of the surviving K1. K1 therefore inherits ½, E1 and E2 divide the other half and inherit ¼. The estate is therefore divided equally according to lineage.
Succession according to the second order
Testator A dies unmarried and childless. At the time of her death, both parents and two siblings are alive. In this case, both of A’s parents exclude their other children from the succession and each inherit half of the estate.
Succession according to the second order with right of entry of a half-sibling
Testator A dies unmarried and childless. At the time of his death, his mother, his biological sister and a half-brother from his predeceased father’s first marriage are alive. In this case, the mother inherits half. Both siblings of the deceased, including the half-brother, take their predeceased father’s position as heir and inherit ¼ each. The so-called “lineage principle” applies, according to which all descendants of the predeceased parent take their place, regardless of the degree of kinship. If there are no more descendants of the predeceased parent, the inheritance is passed on in full to the surviving parent, in this case the mother.
Inheritance rights of surviving spouses
Surviving spouses generally inherit a quarter of the estate, alongside relatives of the first order (pursuant to Section 1931 (1), (2) BGB), and ½ each alongside relatives of the second and third order. The statutory right of inheritance in favor of married partners applies after the opening of “marriage for all” regardless of whether the spouses are of the same or different sex. The inheritance law for registered civil partners is regulated in the same way in Section 10 of the LPartG.
If the spouses have lived under the statutory matrimonial property regime of community of accrued gains, the inheritance share of the surviving partner is increased in accordance with Section 1371 para. § 1371 para. 1 BGB by a further quarter of the estate.
Example of matrimonial inheritance law
On her death, the testator leaves behind two children K1 and K2 and her husband E, with whom she lived under the statutory matrimonial property regime of community of accrued gains. E inherits ¼ of the estate as spouse. The property settlement brought about here under inheritance law increases this share by a further quarter to ½. K1 and K2 are jointly entitled to the other half of the estate. They therefore inherit ¼ each.
Special feature for married couples: Right to the “legal advance”
There is a special feature in the spouse’s right to the statutory advance pursuant to Section 1932 BGB. § 1932 BGB. This is a claim under the law of obligations against the other heirs for the return of items from the marital household and wedding gifts. The surviving spouse should also be able to continue the former joint household alone.
No inheritance rights in the event of divorce
If the marriage was divorced prior to the inheritance, or if the conditions for divorce were met at that time and a divorce petition had already been filed, the statutory spouse’s right of inheritance is waived (§ 1933 BGB).
Should I write a will at all?
As shown, the legislator provides for a detailed and appropriate distribution of the estate in the absence of an individual arrangement. However, the question of who should succeed to one’s own legal and property succession concerns highly personal aspects of legal self-determination and should be resolved with careful consideration. In order to accommodate complicated family structures, it makes sense to take a close look at succession planning and find a tailor-made solution. Even if this then corresponds to the legal variant, the drafting of a will should always be considered – if only to avoid ambiguities in the distribution of the estate.