In the context of marriage, spouses can agree on a property regime by marriage contract. If they do not do so, then the legal community of gain applies in principle. However, the spouses can conclude a different regulation by marriage contract, so that one agrees on a community or separation of property as legal variants or a self-determined agreement. However, the community of gain in the event of termination of the marriage has significant consequences, since this leads to a balance of gain between the spouses. This is particularly important in the case of a related inheritance. However, this compensation can also be useful as a design model in the context of a property swing for the tax-free transfer of assets from one spouse to another.

Property law is a legal aspect that regulates the property relations of the spouses. Property is therefore a generic term for the property relations in marriage. A distinction is made between the legally defined forms in which a property regime can exist and the voting property regimes that deviate from legal requirements.

By performing the marriage before the registry office, the newlywed spouses establish a common property regime. If they do not conclude a separate marriage contract with a deviating regulation, the property law of the joint venture defined by law automatically applies. By means of a marriage contract, the spouses could agree on a different property regime together, for example a separation of property or a community of property.

Upon the end of a marriage by separation or the death of a spouse, the property regime in force until then also ends. This dissolution of the property regime may have far-reaching consequences which may also have an impact on inheritance.

In determining the property regime of spouses, their citizenship also plays a role. Of course, German property law applies in principle among German spouses. However, if at least one of the spouses has a nationality other than German citizenship, then there is also the possibility to choose the legal framework for the property regime of the respective foreign country. However, by way of derogation, agreements may also be concluded which apply German law to their property regime.

In addition, the habitual residence of one of the spouses can also be decisive in the election to the property regime. For example, if two German spouses emigrate abroad, then they can also consider the rules applicable there on the property regime for themselves.

Even though the law and we here speak so consistently of marriages in the classical sense, when it comes to questions about the property regime, registered civil partnerships are treated as marriages. Because both civil and tax law, civil partnerships are basically equal to marriages. For the sake of simplicity, we therefore continue to speak only of marriages.

In addition, another special feature applies to real estate in the property of the spouses. If the property is located abroad, then the spouses can make a separate agreement on the property regime, whereby the law in relation to the property regime of the local state is also available for selection.

The cooperative partnership is the basic statutory provision for spouses if they do not agree on a different property regime by marriage contract (§ 1408, § 1363 BGB). The property of the spouses remains in principle separated in marriage. Each spouse therefore remains the holder and owner of the property belonging to him on entering the property regime. There is no common property unless co-ownership is established. However, at the time of the death of a spouse or at the time of the divorce of the marriage, an offset of profits takes place. The community of profits therefore does not trigger a common asset, as in a community of goods, for example.

Compensation for profit means that the increases in assets are determined individually for each spouse and then compared with each other. The difference between the two gains is then divided between the spouses (§ 1363 II S.2 BGB). Upon termination of the property regime, the spouse with the smaller gain shall receive a claim against the other spouse equal to half the difference between the respective gains. The gains are calculated from the difference between the assets at the beginning of the marriage and the assets at the end of the marriage. However, it is also possible by a side agreement or contract to exempt individual goods from the community of gains.

A and B get married in 2010. In 2020, you will get divorced again. A has assets of EUR 100 at the beginning of the marriage and assets of EUR 330 at the end of the marriage. B has assets of EUR 60 at the beginning of the marriage and assets of EUR 80 at the end of the marriage.

The gain for A is EUR 230 (EUR 330 – EUR 100) and for B there is a gain of EUR 20 (EUR 80 – EUR 60). Here A has had a significantly higher gain during the marriage and B is therefore obliged to compensate (profit compensation).

Next, the surplus or the difference of the gains must be determined. A has a profit surplus of EUR 210 (EUR 230 – EUR 20). Of these, A has to transfer half as compensation to B, i.e. EUR 105.

Thus, after the offsetting of profits, A and B have the following assets: A has assets of EUR 225 and B has assets of EUR 185.

It should be noted that inflation offsetting is also to be included for the initial assets. At the same time, inheritances increase the initial assets of the respective spouse, so that they are effectively not included in the profit compensation.

Compensation of profits is a legal claim that arises when the community of profits ends. There is no inheritance tax or gift tax, because § 5 ErbStG does not recognize any inheritance or gift here. It does not matter how the end of the community of added value occurs.

This circumstance can be used within the framework of a design model. Because with the so-called property regime swing, spouses are able to transfer assets to each other tax-free by bringing about a profit compensation.

The separation of goods (§ 1414 BGB) also constitutes a property regime under family law. But in contrast to the community of gain, the assets of the spouses are to be treated separately. In order to change from the basic legal form, the community of gains, to the separation of property, the spouses must jointly sign a notarized marriage contract. An effect of the marriage contract vis-à-vis third parties is only concluded if the marriage contract is entered in the register of property rights.

Due to the separation of the property of the spouses, no profit compensation or similar is made here at the end of the marriage. So you simply treat assets separately. Thus, the property which each spouse had at his disposal at the beginning of the marriage and that which he gained in the course of the marriage remain solely assigned to him.

In a community of property (§ 1415 BGB), the property of the spouses is treated as a common property. So it's a so-called total good. In addition, each spouse can also have reserved property and special property. In total, there are 5 different assets. The assets to be administered jointly by both spouses are thus part of the total property (§ 1416 BGB).

Similar to the separation of property, a notarized marriage contract must also be agreed here. The marriage contract only has an effect on third parties if it is entered in the register of property rights.

The reserved property (§ 1418 BGB) includes goods that were excluded from the total property by marriage contract, as well as inheritances and gifts that are not to be assigned to the total property (determination is made by the decedent / donor). The goods in the reserved property are managed by the respective spouse independently and on his own account.

The special property (§ 1417 BGB) consists of objects and rights which cannot be sold or transferred. These include, for example, usufruct rights.

In inheritance tax, inheritance is particularly protected in a straight line (grandparents, parents, children). The allowances for an inheritance on the children are the highest. Heirs can in principle only with the deceased relatives. Marriage creates a special relationship between the spouses. It is therefore hardly surprising that the law grants the surviving spouse a privileged position in inheritance.

Basically, those entitled to inherit share inheritance by head. Should a spouse die and two children remain, the surviving spouse and each of the children would receive one third of the inheritance.

The surviving spouses are protected separately in inheritance law, which is why surviving spouses are given a special inheritance role.

The surviving spouse receives a 25% advance inheritance share. The remaining 75% will then be divided among the other beneficiaries. In the case of two children, the surviving spouse would therefore receive 50% (25 % according to § 1931 (1) BGB + 25 % according to § 1931 (3), § 1371 BGB) and each child would receive 25% of the inheritance.

Since the death of the spouse also means that the marriage is ended at the same time, the surviving spouse would now (possibly) be entitled to a profit compensation. However, the profit compensation is regularly fulfilled by the fact that this same 25% is taken into account and granted in advance of the spouse (§ 1371 (1) BGB).

Since the property regimes (combination of goods and segregation of goods) each require a notarized marriage contract, this usually also directly stipulates its own contractual successions. The contractual regulations are therefore individual and usually deviating from the law. However, there is also a special inheritance-legal role in the community of property and the separation of property for the surviving spouse (§ 1932 BGB).