Encrochat: Constitutional complaint failed
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January 25, 2021 /
Spouses, children and other family members such as parents, siblings or uncles and aunts are among the legally entitled heirs to the succession. However, the testator can exclude certain persons from the succession by means of a will or an inheritance contract. The reasons for this are often to be found in the private sphere and often arise from disputes, but they do not have to be stated due to the freedom to make a will.
If a person is excluded from succession, this changes their rights to the estate. This means that the legal heir is excluded from property succession, such as ownership and usage rights to estate items, by disinheritance.
However, disinheritance also applies to the disinherited person’s descendants, unless otherwise stipulated in the will, so that they are also excluded from the succession.
The disinherited heir can be replaced by an heir of choice.
Close relatives may also be entitled to a minimum share of the inheritance after disinheritance – the so-called compulsory portion. The compulsory portion is subject to statutory regulations in accordance with Section 2303 of the German Civil Code (BGB), which regulates those entitled to a compulsory portion. These include
– all children, grandchildren and great-grandchildren (legitimate, illegitimate, legitimized and adopted),
– the deceased’s spouse or registered civil partner under the Civil Partnership Act,
– the parents of the testator.
In addition to the right to a compulsory portion, there must also be a claim, i.e. the succession, to the compulsory portion. In order to claim a compulsory portion, the claim must not be time-barred. The right to a compulsory portion is subject to a limitation period of three years(§ 195, 199 BGB).
The compulsory share amounts to 50% of the statutory inheritance share, which in turn depends on the order of succession.
Despite the right of close relatives to a compulsory portion, they can be completely excluded from the inheritance under certain circumstances. This is referred to as a complete disinheritance or withdrawal of a compulsory portion. However, this requires valid reasons, which must be listed in the will; court judgments or notifications are suitable for this. This is standardized in § 2333 BGB.
Examples would be a serious, intentional offense or an attempted murder at the expense of the testator or a person close to the testator.
Another possibility for the withdrawal of the compulsory portion is the legally ordered placement or stay of the heir in a psychiatric clinic or detention center.
Likewise, a prison sentence may be unreasonable for the testator.
It is not possible to withdraw the compulsory portion due to gross ingratitude. However, gross ingratitude entitles the recipient to reclaim gifts.
The testator can forgive the beneficiary of the compulsory portion for conduct that entitles him/her to a compulsory portion. A deprivation of a compulsory portion that has already been ordered then becomes ineffective in accordance with Section 2337 BGB.
If it is not possible to disinherit without a compulsory portion, the compulsory portion can at least be reduced.
For example, through adoption. The entitlement of other persons entitled to a compulsory portion is reduced by the adoption of children (e.g. from a second marriage).
The compulsory portion can also be reduced by “endowing the descendants”. However, this requires an appropriate relationship to the parental assets.
In any case, a will should be legally effective. Your law firm Höchstetter & Koll. will be happy to provide you with comprehensive advice.