Intestate Succession of spouses/ inscribed same-sex partners

In order to secure their maintenance the spouse/ partner of the deceased is entitled a separate right to inheritance (Sec. 1931 of the German Civil Code, Sec 10 para. 1 of the Same-Sex Partnership Act). Their portion firstly depend on the degree of blood relationship to which the other inheritors belong and secondly on their matrimonial property relation to the deceased at the time of his death. Should the other inheritors be relatives of the first (second) degree the spouse/ partner of the deceased would participate with a potion of ¼ (½). Should the couple have had joint ownership in regard to the increase in capital value of assets (which is the statutory regime of matrimonial property in Germany) the share of the surviving spouse/ partner increases to ½ (¾). This raise of ¼ is a measure to simplify the calculation of the spouse´s claim to half of the balance of the accrued gain that was produced during the marriage. Finally, the spouse/ partner is called to succession solely only if the descendants of the grand-parents are the nearest family relative of the deceased.

Examples:

1. Albert, a doctor and head of a hospital department, married after his divorce Elfriede who works as a nurse. They have joint ownership in regard to the increase in capital value of assets. His son Samuel does not come along well with his stepmother. Two years before his death Albert purchases a mansion with money which he earned and put aside during his marriage with Elisabeth. The purchase price shall be 1.000.000,00 €. There is no testament. After Albert´s death Elfriede waives her right to inherit an increased share of ½ and demands a precise equalisation of the accrued gains instead. This claim would amount to 500.000,00 € which is half of the purchase price for the villa. Furthermore Elisabeth is entitled a legal portion of 1/8 of the residual estate of 500.000,00 € (half of her regular intestate share of ¼). In total Elisabeth could claim 562.500,00 € (62.500,00 € as her legal portion + 500.000,00 €) instead of 500.000,00 which she would have received if she had accepted her icreased share of ½.
   
2. Michael and Miriam have elected the separation of property as their marital regime. They have two children and no testament. How is Miriam´s share in case of Michael´s death? Would it make a difference if the spouses had a third child? The key for the answers lies in the marital regime which the spouses have agreed upon. In the first alternative Miriam is called to succession with a share of 1/3 because her original share of ¼ increases according to Sec. 1931 para. 4 of the German Civil Code. This provision follows the perception that Miriam shall not inherit less than each of her children. In the second alternative the Miriam´s share of ¼ remains unaffected because her three children would also participate with a share of ¼.

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