Money compensation for disinherited or insufficiently remembered descendants, parents or spouses (legal portion/ compulsory portion/ forced share)

In principle, everyone can dispose of his property at his full discretion by either giving it away in one´s lifetime or by writing a will. However, the constitutional guarantee stipulated in Art. 14 of the German Basic Law acknowledges the transfer of goods to the next generation within the family as one of the basic features of the civil society. Therefore, the provisions in Sec. 2303 sqq. of the German Civil Code entitle individuals who are related to the decedent by blood, marriage, inscribed same-sex partnership or adoption a minimum share of the heritage. This applies not only to disinherited family members but also to inheritors which have been remembered in the decedent´s will insufficiently. However, the parents of the deceased are entitled such portion only in the event that there are no descendants of the first degree alive. Furthermore, brothers, sisters or other even farer relatives of the deceased do not participate with a compulsory share.

The legal portion amounts to half of the inheritance quota which would result in case of an intestate succession. Should the deceased have given away items within a period of ten years before his death such gifts would be also included in the calculation. This 10-year-deadline is extended if the spouse is the receiver of such gift or if the deceased has reserved a right of usufruct for himself in regard to it. Again, two examples:

1. Emil bequeathes a handicraft business which is worth 1.000.000,00 €. He has written a will according to which his spouse Elisabeth shall be sole inheritor. During his lifetime the spouses had joint ownership in regard to the increase in capital value of assets (statutory regime of matrimonial property). Emil also has an illegitimate son who claims for his legal portion after Emil´s death. The son´s money claim amounts to half of the value of his regular legal share. Elisabeth´s legal share would add up to ½ (¼ inheritance share + ¼ for the equalisation of accrued gains). Therefor, the son would receive the other half. As a consequence, his forced share is ¼ or 250.000,00 €. As this claim has to be paid in cash this debt could ruin the business.
   
   
2. Mrs. Reich is a widow and leaves behind two children (Anton and Antonia) which arose from her last marriage. Another child (Theodor) emanated from her first marriage. During her lifetime, Ms. Reich has transferred already two pieces of real estate to Anton and Antonia and she has reserved the right of usufruct for herself. The market value of each real estate at the time of the transfer and under consideration of the usufruct was 500.000,00 €. After her death she bequeathes Anton and Antonia liquid assets of a value of 500.00,00 €. Theodor is not mentioned in her will and consequently disinherited. Theodor´s legal portion amounts to half of his regular intestate share which would be 1/3, hence 1/6. The estate consists of the liquid assets only. However, in order to calculate his claim the value of the gifts have to be added. The notional estate that serves as the base for the calculation therefore is 1.500.000,00 €. Theodor´s share of 1/6 would result in a money claim of 250.000,00 € without considering the inflation. From the residual estate Anton and Antonia receive only 125.000,00 € each.
   

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