Mandatory portion - your right to a minimum share

Do you need a professional calculation of your compulsory portion or have you been disinherited and want to claim your compulsory portion?

Or do you as an heir have to fend off claims to a compulsory portion? The compulsory portion is one of the most controversial issues in the Inheritance law. Lawyer Martin Reichelt in Dresden represents you competently - on the side of the person entitled to a compulsory portion as well as on the side of the heir.

What is the compulsory portion?

The compulsory portion secures close relatives a Minimum participation in the estate, even if they are characterised by Will or inheritance contract were excluded from the succession (§§ 2303 ff. BGB). The compulsory portion is a pure Monetary claim against the heir - no claim to specific items of the estate. The person entitled to a compulsory portion therefore does not become a co-heir and has no say in the settlement of the estate.

Who is entitled to the compulsory portion?

Only certain close relatives of the deceased are entitled to a compulsory portion:

• Descendants (children, grandchildren, great-grandchildren) - grandchildren and great-grandchildren only if their parent has predeceased them or is themselves disinherited
• Spouse or registered life partner
• Parents of the deceased - only if there are no descendants

Not entitled to a compulsory portion are: Siblings, grandparents, uncles/aunts, life partners (without marriage/life partnership), stepchildren (without adoption) and relatives by marriage.

Calculating the compulsory portion - determining the correct amount

The compulsory portion amounts to Half of the statutory inheritance share. The calculation is performed in two steps:

Step 1: Determine the legal share of the estate

Person entitled to a compulsory portion	Legal inheritance share	Mandatory portion
Sole heir (only child)	½ (for spouse) or 1/1	¼ or ½
Child (2 children + spouse)	¼	⅛
Spouse (+ children, gain)	½	¼
Parent (no children, + spouse)	⅛	1/16

Step 2: Determine the estate value

For a correct calculation of the compulsory portion, the Value of the estate at the time of inheritance. To do this, all assets must be determined and liabilities deducted:

• Assets: Real estate, bank deposits, securities, vehicles, jewellery, company shares
• Liabilities: Debts, funeral costs, estate liabilities

Calculation examples

Example 1: Estate value €400,000 - spouse and 2 children (community of accrued gains). One child is disinherited. Statutory inheritance share of the child: ¼. Compulsory portion: ⅛ = ⅛. 50.000 €.

Example 2: Estate value €600,000 - spouse and 1 child. Spouse is disinherited, new partner becomes sole heir. Legal inheritance share of the spouse (community of accrued gains): ½. Compulsory portion: ¼ = 150.000 €. The child also has a compulsory portion: statutory inheritance ¼, compulsory portion ⅛ = 75.000 €.

Example 3: Estate value €300,000 - unmarried, 3 children, all disinherited. Statutory inheritance share per child: ⅓. Compulsory portion per child: ⅙ = 50.000 € per child, in total 150.000 € Compulsory portion burden for the heir.

Claim to a supplementary compulsory portion

If the testator made gifts during his or her lifetime to reduce the estate, the following apply Claims to a supplementary compulsory portion (§ 2325 BGB). Gifts from the last ten years before the inheritance is added to the estate - with diminishing consideration:

• 1st year before death: 100 % of the gift is taken into account
• 2nd year: 90 %
• 3rd year: 80 %
• ... and so on until the 10th year: 10 %

Exception: Gifts to the spouse are only taken into account from the time of the dissolution of the marriage - in fact, they are always taken into account at 100 % as long as the marriage lasted until death.

Example: The testator made a gift of €200,000 to his brother 5 years before his death. Of this, 60 % = €120,000 is notionally added to the estate. The compulsory portion is calculated on this increased estate.

Claiming a compulsory portion - how to proceed

1. Assert a claim for information: The heir is obliged to provide you with a complete inventory of the estate (§ 2314 BGB). You can submit a Notarised list of estates which is drawn up at the expense of the estate.
2. Valuation: Have real estate and other valuable estate items valued by experts.
3. Calculate compulsory portion: The specific compulsory portion claim is calculated on the basis of the determined estate value. The correct calculation of the compulsory portion requires precise knowledge of all assets and liabilities.
4. Request for payment: Ask the heir to pay - with a reasonable deadline.
5. Lawsuit: If the heir refuses to pay, the compulsory portion must be enforced in court.

Statute of limitations: The right to a compulsory portion expires in three years from the time you become aware of the inheritance case and the impairing disposition (§ 2332 BGB). You should therefore act in good time!

Waiver of compulsory portion

Those entitled to a compulsory portion can waive their compulsory portion during the testator's lifetime. The Waiver of compulsory portion agreement must notarised (Section 2346 (2) BGB) and is concluded between the testator and the waiving party.

Typical constellations for a waiver of a compulsory portion:

• Severance payment: The child receives a cash payment or a property during his or her lifetime and waives the compulsory portion in return
• Company succession: One child takes over the company, the other children waive their compulsory portion in return for compensation so as not to jeopardise the company's liquidity
• Berlin will: The children waive their compulsory portion in the first succession so as not to burden the surviving spouse

Important: A waiver of a compulsory portion cannot be declared unilaterally and is only possible during the testator's lifetime. After the inheritance, the person entitled to a compulsory portion can no longer „waive“ their claim, but they can voluntarily waive their claim or reach a settlement with the heir.

Objectively limited waiver: The waiver of the compulsory portion can also be limited to certain items of the estate. For example, it can be agreed that a child waives the compulsory portion insofar as the estate consists of the family property, but retains the compulsory portion with regard to the rest of the estate. It is also possible to waive only the right to a supplementary compulsory portion (in the case of gifts).

Contestation of the waiver of the compulsory portion: A waiver of a compulsory portion can be contested under strict conditions - for example in the event of fraudulent misrepresentation regarding the extent of the estate or in the event of threats. The contestation period is one year from knowledge of the grounds for contestation. As an effective waiver of a compulsory portion has far-reaching consequences, independent legal advice is recommended before signing.

Withdrawal of compulsory portion

The testator can only claim the compulsory portion in extreme exceptional cases (§ 2333 BGB). The hurdles of the law are deliberately set high:

• Striving for life: The person entitled to a compulsory portion has sought the life of the testator, the spouse, another descendant or a person similarly related to the testator
• Serious offence: Serious intentional criminal offence (felony or intentional misdemeanour) against the testator or a person close to the testator
• Breach of maintenance obligation: Malicious breach of the statutory maintenance obligation towards the testator
• Criminal conviction: Final conviction for a serious intentional offence to a prison sentence of at least one year without probation

The reason for withdrawal must be Will Specifically stated be made. A blanket withdrawal without justification is invalid. In practice, a withdrawal of a compulsory portion is rarely successful - the courts scrutinise the conditions strictly.

Alternative: Restriction of compulsory portion in good faith (SECTION 2338 BGB): If a descendant is over-indebted or wasteful, the testator can limit the compulsory portion by ordering subsequent succession or appointing an executor. This prevents the compulsory portion from flowing directly to the creditors of the person entitled to the compulsory portion.

Compulsory portion and Berlin will

At the Berlin will the spouses appoint each other as sole heirs. The children are initially disinherited and only inherit after the death of the second parent. But be careful: the children have already first inheritance a claim to a compulsory portion against the surviving spouse.

Many Berlin wills therefore contain a Mandatory portion penalty clauseIf you claim your compulsory portion in the first succession, you will also be limited to the compulsory portion in the second succession. You should have a lawyer check whether such a clause applies in your case.

Mandatory portion and taxes

The compulsory portion is subject to Inheritance tax. The beneficiary of the compulsory portion must declare the compulsory portion received in their inheritance tax return. The same tax-free amounts apply as for a regular inheritance - i.e. €400,000 per parent for children and €500,000 for spouses.

For the Heirs the compulsory portion paid out is deductible as a liability of the estate and thus reduces his or her own inheritance tax burden. The right to a compulsory portion arises for tax purposes upon inheritance, but only becomes taxable when it is claimed (Section 3 (1) no. 1 ErbStG).

Deferral of the compulsory portion

In certain cases, the heir may receive a Deferral of the claim to a compulsory portion (§ 2331a BGB). The deferral can be considered if the immediate fulfilment of the compulsory portion would hit the heir unreasonably hard - especially if:

• The estate essentially consists of a owner-occupied property which would have to be sold
• A Family business would have to be sold or encumbered
• The heir by the immediate payment in his economic existence would be jeopardised

The deferral must be applied for at the probate court. The court determines the duration of the deferral and can order payment in instalments. Interest must be paid on the compulsory portion during the deferral period. Attorney Reichelt supports you in the enforcement or defence of an application for deferral.

Frequently asked questions about the compulsory portion

How high is the compulsory portion?

The compulsory portion is half of the statutory inheritance share. In the case of a single child and a spouse with community of accrued gains, the child's compulsory portion is one quarter of the value of the estate.

Can I waive the compulsory portion?

Yes, through a notarised waiver of compulsory portion agreement with the testator (Section 2346 BGB). The waiver is often agreed in return for a settlement payment. It is no longer possible to waive the compulsory portion after the inheritance.

When does the right to a compulsory portion expire?

The limitation period for the compulsory portion claim is three years from the date of knowledge of the inheritance and the disinheritance. Irrespective of knowledge, it expires 30 years after the inheritance at the latest.

Does the heir have to give me information about the estate?

Yes, the heir is obliged under Section 2314 BGB to draw up an inventory of the estate. You can even request a notarised inventory, which will be drawn up at the estate's expense.

Can the compulsory portion be avoided by making gifts during one's lifetime?

No, not completely. Gifts made in the last ten years are taken into account via the supplementary entitlement to a compulsory portion. The amount taken into account decreases by 10 % each year. Gifts to the spouse are always taken into account in full, regardless of when they were made, as long as the marriage lasted.

What happens if the estate is not sufficient to pay the compulsory portion?

The heir is generally liable for the compulsory portion from the entire estate. If the estate is insufficient, the heir can limit liability to the estate (estate administration, estate insolvency). If necessary, the person entitled to the compulsory portion must have their claim reduced proportionately.

This article is intended to provide general information and does not replace individual legal advice. For a compulsory portion calculation tailored to your case, please contact Lawyer Martin Reichelt in Dresden.