Certain groups of people can be disinherited, but they can at least enforce a compulsory share right as soon as the inheritance occurs. Nevertheless, there are possibilities with which one can prevent a compulsory part claim of disinherited persons during their lifetime. On the one hand, this succeeds through a contractual arrangement in combination with a small capital contribution as compensation for the waiver of the compulsory part. On the other hand, it may also be possible through an annuity, which the heirs take over in return for a premature transfer of property, to prevent a disinherited person from successfully claiming his right to a compulsory part in the case of inheritance. Similarly, the approach is to transfer assets already during their lifetime via a reserved usufruct.

1. How to prevent a compulsory part claim – Introduction

Wealthy individuals have a legitimate reason to think about the future of their wealth beyond their own end of life. Who should continue my business, which my grandparents already founded? Who is worthy to take over my paintings, my vintage car collection and my wine cellar to care for and cherish? And who will one day move into my villa, my castle? But all these considerations can be darkened by a dark shadow, although there are still reasons to disinherit one or the other person who is considered an heir. In certain cases, even though they have been disinherited, potential heirs are still entitled to a certain part of the inheritance, namely the compulsory part.

2. What is the obligation and who is entitled to it?

So let us first clarify what the compulsory part entitlement is. Spouses and descendants (children and children's children) of a decedent or decedent are the only persons who are entitled to a legally enshrined right to a compulsory share. This means that they can still claim part of the inheritance they are legally entitled to if they have been disinherited. The amount of the compulsory share entitlement is measured at half of the inheritance otherwise due to them. Spouses, for example, are entitled to 50% of their partner’s assets. If, on the other hand, spouses are disinherited, they can still receive 25% of the total inherited property by claiming their right to a compulsory share. This entitlement to the compulsory share is addressed to the heirs of property favored in the will. For this purpose, there is the regular statute of limitations of three years standardized by law in §§ 195, 199 BGB. If the time limit expires, the entitlement to the compulsory share expires.

Particularly delicate, however, is the compulsory share entitlement of illegitimate children. Especially in situations where this secret has been kept from your family for a lifetime, one understandably wants to prevent this from becoming known after death. If, in the division of the inheritance, an illegitimate child suddenly appears at the opening of the will and then also demands his or her right to a compulsory share, then this has the positive effect that the grief for the deceased person quickly vanishes, but only to then give way to the even greater anger about him or her. In addition, one may then expect one’s own family to legally challenge the compulsory part entitlement, which means a lengthy procedure with an uncertain outcome. It should therefore be clear that this is not an option. So how can you prevent a compulsory part entitlement during your lifetime?

3. Are there legal reasons that prevent a compulsory share entitlement?

Anyone who now thinks about transferring their own assets at the time of death and wants to exclude certain persons will be little enthusiastic about the compulsory part claim, which a disinherited descendant or spouse could still raise. So it is logical to look for ways to prevent the compulsory share right from being enforced.

And in fact there are even some legal regulations according to which one can negate a compulsory part entitlement. However, these are very serious objections which must be justified in the disinherited person in order to give the deceased the means to prevent the right to a compulsory share. Objections include, inter alia, the intention of the disinherited person to seek the life of the deceased or to declare him/her immature, especially if this is accompanied by sinister motives, for example to seize the property of the deceased. But you already suspect that these are extremely rare cases and are therefore only suitable in exceptional situations to prevent a compulsory part entitlement. Nevertheless, the legislature has also created a provision for this (§ 2333 BGB).

4. Legal ways to prevent a compulsory share entitlement

Now we come to those legal options that can really help you in the exclusion of a compulsory part right in practice.

On the one hand, there would be the push to persuade the person entitled to the compulsory share but disinherited to sign a waiver. Such a waiver actually requires notarization. After all, this is also about considerable financial issues, so that a notary appointment serves to create awareness about the scope of such a decision. Ideally, one can achieve a waiver of the compulsory part entitlement even via a purely moral argument. But you should also be prepared that you only get to the goal with financial incentives. It can be stated that the person entitled to the compulsory part can by no means be sure that, should he retain his compulsory part entitlement, he will still receive something at all. In order to achieve the goal, she must therefore appear more advantageous to receive a relatively small financial advantage in the present than to wait for a potentially higher one in the future, which is less certain than the immediate one.

On the other hand, you can actively ensure that an existing compulsory part entitlement comes to nothing. For example, one can transfer the property already during his lifetime to all heirs considered worthy. In order to prevent one thereby having to give up the hitherto usual high standard of living, one transfers the property against granting an annuity. Such an annuity should, of course, be fed from the property transferred in return. As a result, the transferred assets lose value through the annuity and thus the gift tax falls significantly. In this context, it is also possible to consider a conditional usage as a design option. A sale against a purchase price claim, on the other hand, is not a sensible alternative in this case, because the claim will one day flow into the inheritance as an asset and thus also feed the compulsory part, which one actually wants to dry up.

5. Warning against illegal methods of preventing compulsory share entitlement

In the previous chapter, we explicitly referred to the legal possibilities with which a compulsory part entitlement can be eliminated. So, conversely, there are also illegal ways, which we now want to warn about urgently. Because those who engage in such methods, on the one hand, make themselves punishable, on the other hand often enough only achieve the opposite, namely resistance. Although pressure may be exerted on the disinherited person to a certain extent, which is often emotionally understandable, this must not lead to threats or blackmail. It is also essential to refrain from intentional deception, especially with regard to the amount of property to be inherited. For if under such or other circumstances a contract for the waiver of the right to a compulsory share is concluded, it can easily be declared invalid if the deception is revealed.

6. Prevent the right to a compulsory share – Conclusion

Lawyers for inheritance law

Inheritance/donation