date | theme

8. October 2017 | Avoidance of inheritance tax: 6 legal tax tips

12. May 2018 | Reduction of inheritance tax/gift tax: usufruct of money – fixed money – bank balances

10. July 2019 | Selling real estate to children: Depreciation + Save inheritance tax

24. July 2019 | Saving inheritance tax through chain gifting: deadlines and criteria

16. August 2022 | Reject inheritance: Requirements and benefits for spouses (this contribution)

The inheritance can be prevented by waiving it or by rejecting the inheritance. However, certain conditions must be met. In this post, we explain how you reject an inheritance and what benefits it has for spouses in particular.

1st Amendment of Succession

The arbitrary or legal succession can change by the fact that an heir dies before the succession. In addition, the heir can already waive the grant before the inheritance. Then he is treated as if he were no longer alive at the time of inheritance. After the inheritance, the heir can also refuse the inheritance. Then the fall of inheritance on the deceasing party shall be deemed not to have taken place pursuant to § 1953 (1), (2) BGB and the succession shall be deemed as if the deceasing party had not lived at the time of the succession.

Reject 2nd inheritance

2.1. Inheritance is only possible after the succession

After death, the inheritance of the heirs accrues automatically without a declaration of acceptance. Then the heir can refuse the inheritance if he actually does not want it. This means that the attack on him is retroactively deemed not to have occurred. Then it is fabricated that the deceased is already at the time of the inheritance. As long as the decision is possible, there is therefore uncertainty as to whether the inheritance to one or more heirs lasts.

2.2 Reject inheritance: Requirements

You can refuse an inheritance after the succession by declaration to the probate court. The possibility ends with the acceptance of the inheritance. However, inheritance accrues by law without further ado. Therefore, assumption in this sense means the waiver of the person entitled to the waiver. Therefore, the adoption can also be in coherent action. The heir must consider himself to be the final heir for acceptance, which becomes clear, for example, from the fact that he applies for a certificate of inheritance.

Upon expiry of the statutory period for the rejection of the inheritance, the acceptance of the inheritance is fictitious. You can only refuse your inheritance within a six-week period. The short period is intended to ensure, in particular in the interest of the creditors of the estate, that there is clarity as quickly as possible about who has become heir and is therefore liable for succession liabilities. The period shall begin when the heir has acquired reliable knowledge of the accumulation of the inheritance and the reason for the vocation as heir. This can be assumed if the probate court has opened the will according to § 348 FamFG.

There is no deadline for the rejection of a legacy, because there is no such uncertain situation about the legal entity of the estate. The legacy can therefore only be accepted by formless, non-needy declaration of will of the thoughtful.

2.3 Reject inheritance: Legal consequences

If you reject your inheritance, then the inheritance or the claim to inheritance is retroactively waived. The deceased is accused of deceasing before the inheritance. That is why he is not entitled to a compulsory share. The arbitrary inheritance, however, can refuse the establishment of inheritance and become a legal inheritance.

Reject inheritance as a benefit for spouses

3.1. Inheritance turns out when profit compensation is higher

The inheriting spouse does not have to seek compensation under the law of succession. Rather, he may also decide to receive the property compensation. He can reject the inheritance and then demand from the heirs profit compensation as after dissolution of the marriage by divorce. In addition, despite the waiver, he is entitled to a compulsory share in the amount of half of his legal inheritance against the heir. The claim is to be calculated as follows. For the time being, the amount of compensation must be determined in concrete terms. This amount shall then be deducted as an estate liability when determining the value of the estate. Finally, on this basis, the compulsory part entitlement is to be determined, so-called small compulsory part.

Therefore, as a spouse, you must compare the value of the statutory inheritance with the amount that you can demand from the heirs as compensation for profits and a compulsory share. In addition, however, it should also be noted that the abusive spouse loses the right to the advance and is not involved in the estate in rem as a member of the community of heirs, but only has a debt-law payment claim against the heir. Depending on what is beneficial to you, you should either reject the inheritance or not. This depends in particular on the amount of gain.

3.2. Inheritance shall be rejected if occupation of inheritance is less

If the deceased has appointed the spouse at a lower rate than he would receive under the statutory succession, the spouse must reject the inheritance in order to obtain at least the compensation under property law. If he fails to do so, he is entitled to an additional compulsory part. The prerequisite for this, however, is that the contribution to the surviving spouse is less than the value of the compulsory part that would be due to him if he had not been considered at all, § 2305 BGB. It should be noted that the compulsory part in this case is calculated after the inheritance increased by 1⁄4 according to § 1371 (1) BGB, so-called large compulsory part. The reason for this is that no profit compensation is made and therefore a double profit compensation does not have to be prevented.

If, on the other hand, a small legacy is turned to the spouse, § 2307 BGB applies. Accordingly, the spouse can reject the legacy and demand the small part of the obligation and the compensation for profit. But he can also keep the legacy and demand a residual part in order to benefit from the large part in terms of value.

4th waiver

4.1. Requirements

Heirs can not only reject the inheritance but also renounce it. Legal heirs of a testator may waive their legal right of succession in accordance with § 2346 (1) BGB by contract with the testator. The waiver contract is concluded during the life of the deceased between the deceased and the renouncer and requires notarization.

The waiver then also includes the mandatory part. An isolated waiver of compulsory parts is also conceivable according to § 2346 paragraph 2 BGB. This occurs in practice more often than the renunciation of inheritance. The reason for this is that the decedent can easily eliminate the legal right of succession by disinheritance. On the other hand, the person who is excluded from the statutory succession by renunciation of inheritance is not counted in the calculation of the compulsory parts of other persons entitled to compulsory parts. This increases their mandatory parts, which, on the other hand, does not happen in the case of a compulsory part waiver. As a rule, it will be important for the testator to keep the mandatory parts of others as low as possible. Succession waiver contracts and compulsory share waiver contracts are therefore a means of targeted succession planning, because they enable the concentration of the estate in the hands of an heir. The waiverer regularly receives a severance payment.

4.2 Legal consequences

The effective renunciation eliminates the statutory right of inheritance and/or the right of compulsory share by making the renunciator pre-deceased. If a spouse waives, the maintenance claims according to §§ 1586b, 1933 sentence 3 BGB are also included, because these are inheritance rights surrogates. However, the renunciation does not prevent the testator from considering the renunciator willingly, because the renunciation serves only to extend the freedoms of the testator.

4.3. waiver in inheritance contract and will

Whoever is appointed by will as an heir or has a legacy can also waive this donation by contract with the testator. Because, however, testamentary dispositions are in principle freely revocable, this possibility has meaning only if there is no revocation possibility, i.e. in the case of joint wills after the death of a spouse.

On the other hand, a contract of inheritance can also be waived. Therefore, a third party who is not party to a contract of succession and to whom a donation has been made in a contract of succession may waive this donation by contract with the testator. In contrast, the deceased must conclude a termination agreement with the succession contract partner himself or a third party himself in order to eliminate the donations to the contractual partner.

The waiver of the legal heir extends in accordance with § 2349 BGB in principle also to the descendants of the waiverer. The renouncer usually receives a severance payment, so that it must be avoided that his trunk is double favored. On the other hand, § 2352 BGB does not refer to § 2349 BGB for the waiver of the person covered by a will or inheritance contract. Therefore, the descendants take the place of the renouncer. However, the decedent will also want to exclude the entire tribe of the renunciator in the case of severance pay. Therefore, it must then be assumed that the waiver also applies to the descendants.

Conclusion 5: Reject inheritance vs. Waiver

In summary, it can be stated that the waiver before the succession is possible by contract with the deceased. On the other hand, an inheritance can be rejected by reporting to the probate court after succession. It may be advantageous for spouses to reject the inheritance if the deceased spouse had a particularly high gain in the case of legal property regime. On the other hand, it must be taken into account as disadvantageous that the abusive spouse has no right to the advance and only has a legal claim against the heirs.