Last Updated on June 28, 2021 by LawEuro
German Civil Code (BGB) German law
Subchapter 5
Continued community of property
Section 1483
Occurrence of continued community of property
(1) The spouses may agree by marriage contract that the community of property, after the death of a spouse, is continued between the surviving spouse and the descendants of the spouses. If the spouses make such an agreement, the community of property is continued with the descendants of the spouses who are heirs in the case of intestate succession. The share of the deceased spouse in the marital property is not part of the estate; apart from this, the succession of the deceased spouse takes place under the general provisions of law.
(2) Where, in addition to the descendants of the spouses, there are other descendants, their rights of succession and their shares of the inheritance are determined as if there had been no continued community of property.
Section 1484
Refusal of continued community of property
(1) The surviving spouse may refuse the continuation of the community of property.
(2) The refusal is governed by the provisions governing the disclaimer of an inheritance of sections 1943 to 1947, 1950, 1952, 1954 to 1957 and 1959 with the necessary modifications. If the surviving spouse is under parental custody or under custodianship, the approval of the family court is necessary for the refusal. In the event of refusal by the custodian of the surviving spouse, the approval of the custodianship court is necessary.
(3) If the spouse refuses the continuation of the community of property, the same applies as in the case of section 1482.
Section 1485
Marital property
(1) The marital property of the continued community of property consists of the marital property to the extent that it does not pass under section 1483 (2) to a descendant who is not entitled to a share and of the property that the surviving spouse acquires from the estate of the deceased spouse or after the beginning of the continued community of property.
(2) The property which a descendant of the spouses has at the time when the continued community of property begins or acquires later is not part of the marital property.
(3) The marital property is governed by the provision for marital community of property of section 1416 (2) and (3) with the necessary modifications.
Section 1486
Reserved property; separate property
(1) Reserved property of the surviving spouse is what he previously had as reserved property or what he acquires as reserved property under section 1418 (2) nos. 2 and 3.
(2) Separate property of the surviving spouse is what he previously had as separate property or what he acquires as separate property.
Section 1487
Legal position of the spouse and the descendants
(1) The rights and obligations of the surviving spouse and of the descendants entitled to a share with regard to the marital property of the continued community of property are determined by the provisions applying to marital community of property of sections 1419, 1422 to 1428, 1434, of section 1435 sentences 1 and 3 and of sections 1436 and 1445; the surviving spouse has the legal position of the spouse who manages the marital property alone, and the descendants entitled to a share have the legal position of the other spouse.
(2) What the surviving spouse owes to the marital property or may claim from the marital property is payable only after the termination of the continued community of property.
Section 1488
Marital property obligations
Marital property obligations of the continued community of property are the obligations of the surviving spouse and such obligations of the deceased spouse as were marital property obligations of the marital community of property.
Section 1489
Personal liability for the marital property obligations
(1) The surviving spouse is personally liable for the marital property obligations of the continued community of property.
(2) To the extent that the personal liability applies to the surviving spouse only as a result of the occurrence of the continued community of property, the provisions governing the liability of the heir for the obligations of the estate apply with the necessary modifications; the estate is replaced by the marital property with the inventory that it has at the time when the continued community of property commences.
(3) No personal liability of the descendants entitled to a share for the obligations of the deceased spouse or of the surviving spouse is created by the continued community of property.
Section 1490
Death of a descendant
Where a descendant entitled to a share dies, his share of the marital property is not part of his estate. Where he has descendants who would be entitled to a share if he had not survived the deceased spouse, the descendants take his place. If he has no such descendants, his share accrues to the other descendants entitled to a share and, if there are no such descendants, to the surviving spouse.
Section 1491
Waiver by a descendant
(1) A descendant entitled to a share may waive his share of the marital property. The waiver is made by declaration to the court with jurisdiction over the estate of the deceased spouse; the declaration must be made in notarially certified form. The probate court should give notification of the declaration to the surviving spouse and the other descendants entitled to a share.
(2) The waiver may also be made by contract with the surviving spouse and the other descendants entitled to a share. The contract must be notarially recorded.
(3) If the descendant is under parental custody or under guardianship, the approval of the family court is necessary for the waiver. In the event of waiver by the custodian of the descendant, the approval of the custodianship court is necessary.
(4) The waiver has the same effects as if the person waiving had died without descendants at the time of the waiver.
Section 1492
Termination by the surviving spouse
(1) The surviving spouse may terminate the continued community of property at any time. The termination is made by declaration to the court with jurisdiction over the estate of the deceased spouse; the declaration must be made in notarially certified form. The probate court should notify the descendants entitled to a share and, if the surviving spouse is the legal representative of one of the descendants, the family court of the declaration; if custodianship exists, the approval of the custodianship court should be notified.
(2) The termination may also be effected by contract between the surviving spouse and the descendants entitled to a share. The contract must be notarially recorded.
(3) If the surviving spouse is under parental custody or under guardianship, the approval of the family court is necessary for the termination. In the event of termination by the custodian of the surviving spouse, the approval of the custodianship court is necessary.
Section 1493
Remarriage or establishment of a civil partnership by the surviving spouse
(1) The continued community of property ends when the surviving spouse remarries or establishes a civil partnership.
(2) The surviving spouse must, if a descendant entitled to a share is minor, notify the family court of his intention to remarry, submit a list of the marital property, terminate the community of property and bring about the partitioning. The family court may permit the community of property not to be terminated until conclusion of marriage and the partitioning not to take place until a later date. Sentences 1 and 2 also apply if care for the property of a descendant entitled to a share is part of the area of responsibilities of a custodian; in this case, the custodianship court replaces the family court.
(3) The registry of births, deaths and marriages in which conclusion of marriage has been registered must notify the family court of the registration.
Section 1494
Death of the surviving spouse
(1) The continued community of property ends on the death of the surviving spouse.
(2) If the surviving spouse is declared to be dead, or if the date of his death is established under the provisions of the Missing Persons Act [Verschollenheitsgesetz], the continued community of property ends at the time that is deemed to be the time of death.
Section 1495
Action of a descendant for termination
A descendant entitled to a share may take legal action against the surviving spouse for termination of the continued community of property
1. if his future rights may be substantially endangered by the fact that the other spouse is incapable of managing the marital property or abuses his right to manage the marital property,
2. if the surviving spouse has violated his duty to grant maintenance to the descendant and a substantial endangerment of the maintenance is to be feared in the future,
3. if the management of the marital property falls under the area of responsibilities of the custodian of the surviving spouse,
4. if the surviving spouse has forfeited parental custody for the descendant or, if he had been entitled to it, would have forfeited it.
Section 1496
Effect of the judicial termination decision
The termination of the continued community of property takes effect in the cases of section 1495 when the judicial decision becomes final and absolute. It takes effect for all descendants, even if the judicial decision was pronounced in response to the legal action of one of the descendants.
Section 1497
Legal relationship until partitioning
(1) After the termination of the continued community of property, the surviving spouse and the descendants partition the marital property.
(2) Until the partitioning, their legal relationship to the marital property is governed by sections 1419, 1472 and 1473.
Section 1498
Implementation of the partitioning
The partitioning is governed by the provisions of sections 1475, 1476, section 1477 (1), sections 1479 and 1480 and section 1481 (1) and (3); the place of the spouse who managed the marital property alone is taken by the surviving spouse, and the position of the other spouse is taken by the descendants entitled to a share. The duty set out in section 1476 (2) sentence 2 exists only for the surviving spouse.
Section 1499
Obligations borne by the surviving spouse
In the partitioning, the surviving spouse bears the following:
1. the marital property obligations for which he was responsible at the beginning of the continued community of property for which the marital property was not liable or which he bore as between the spouses;
2. the marital property obligations that arise after the beginning of the continued community of property which, if they had arisen as personal expenses of his during the period of marital community of property, would have fallen on him as between the spouses;
3. an advancement which he promised or granted to a descendant entitled to a share in excess of the amount corresponding to the marital property or which he promised or granted to a descendant not entitled to a share.
Section 1500
Obligations borne by the descendants
(1) The descendants entitled to a share must allow obligations of the deceased spouse which the latter bore as between the spouses to be set off against their share when the partitioning is carried out to the extent that the surviving spouse has not been able to obtain repayment from the heir of the deceased spouse.
(2) In the same way, the descendants entitled to a share must allow whatever the deceased spouse was obliged to reimburse to the marital property to be set off against them.
Section 1501
Set-off of lump sum payments
(1) If a descendant entitled to a share has been granted a lump sum payment from the marital property for waiving his share, the payment is included in the marital property when partitioning takes place and is set off against the half due to the descendants.
(2) The surviving spouse may, even before the termination of the continued community of property, enter into an agreement to a different effect with the other descendants entitled to a share. The agreement must be notarially recorded; it is also effective in relation to the descendants who enter the continued community of property only at a later date.
Section 1502
Right of surviving spouse to take over property
(1) The surviving spouse is entitled to take over the marital property or individual objects that are part of it in return for reimbursement of the value. The right does not pass to the heir.
(2) If the continued community of property, on the basis of section 1495, is terminated by judicial decision, the surviving spouse does not have the right set out in subsection (1). The descendants entitled to a share may in this case take over in return for reimbursement of the value the objects that the deceased spouse would be entitled to take over under section 1477 (2). The right may be exercised by them only jointly.
Section 1503
Division among the descendants
(1) More than one descendant entitled to a share take parts of the half of the marital property that accrues to them in accordance with the proportion of the shares to which they would be entitled in the case of intestate succession as heirs of the deceased spouse if the latter had not died until the time of the termination of the continued community of property.
(2) What they have received previously is set off under the provisions governing set-off among descendants, except to the extent that such a set-off was effected when the estate of the deceased spouse was divided.
(3) If a descendant who has waived his share has been granted a lump sum payment from the marital property, this sum is borne by the descendants who are benefited by the waiver.
Section 1504
Adjustment of liability between descendants
To the extent that the descendants entitled to a share under section 1480 are liable to the marital property creditors, they are liable as between each other in the proportion of their shares to the marital property. The liability is restricted to the objects allotted to them; the provisions of sections 1990 and 1991 that govern the liability of the heir apply with the necessary modifications.
Section 1505
Supplementation of the share of a descendant
The provisions on the right to supplement the compulsory share are applied with the necessary modifications in favour of a descendant entitled to a share; the termination of the continued community of property takes the place of the devolution of the inheritance, the share of the descendant in the marital property at the time of termination is deemed to be the share of the inheritance on intestacy, and half of the value of this share is treated as the compulsory portion.
Section 1506
Unworthiness to receive a share
If a descendant of the spouses is unworthy to inherit, he is also unworthy to receive a share of the marital property. The provisions on unworthiness to inherit apply with the necessary modifications.
Section 1507
Certificate on continuation of the community of property
The probate court, on application, must grant the surviving spouse a certificate confirming the continuation of the community of property. The provisions on the certificate of inheritance apply with the necessary modifications.
Section 1508
(repealed)
Section 1509
Exclusion of the continued community of property by testamentary disposition
Each spouse may, for the eventuality that the marriage is dissolved by his death, by testamentary disposition exclude the continuation of the community of property if he is entitled to deprive the other spouse of the compulsory portion or to institute proceedings for termination of the community of property. The same applies if the spouse is entitled to petition for the annulment of the marriage and has filed the petition. The exclusion is governed by the provisions on the removal of the compulsory portion, with the necessary modifications.
Section 1510
Effect of exclusion
If the continuation of the community of property is excluded, the same applies as in the case of section 1482.
Section 1511
Exclusion of a descendant
(1) Each spouse may, for the eventuality that the marriage is dissolved by his death, by testamentary disposition exclude a descendant of the spouses from the continued community of property.
(2) The excluded descendant may, notwithstanding his right of succession, require payment from the marital property of the continued community of property of the amount that would be due to him from the marital property of the marital community of property as a compulsory share if the continued community of property had not commenced. The provisions governing the claim to a compulsory portion apply with the necessary modifications.
(3) In the partitioning, the amount paid to the excluded descendant is charged to the descendants entitled to a share under section 1501. As between the descendants, it is charged to the descendants who are benefited by the exclusion.
Section 1512
Reduction of the share
Each spouse may, for the eventuality that on his death the continued community of property occurs, by testamentary disposition reduce the share of the marital property to which a descendant entitled to a share has a claim after the end of the continued community of property by up to one half.
Section 1513
Deprivation of the share
(1) Each spouse may, for the eventuality that on his death the continued community of property occurs, by testamentary disposition deprive a descendant entitled to a share of the share of the marital property to which that descendant is entitled after the end of the continued community of property if the spouse is entitled to deprive the descendant of his compulsory share. The provision of section 2336 (2) and (3) applies with the necessary modifications.
(2) If the spouse is entitled under section 2338 to restrict the descendant’s right to a compulsory share, he may subject the share of the descendant in the marital property to a corresponding restriction.
Section 1514
Disposition of the amount withheld
Each spouse may also give to a third party by testamentary disposition the amount of which he deprives a descendant under section 1512 or under section 1513 (1).
Section 1515
Right of a descendant and of the spouse to take over property
(1) Each spouse may, for the eventuality that on his death the continued community of property occurs, by testamentary disposition direct that a descendant entitled to a share should have the right, when the division takes place, to take over the marital property or individual objects that are part of it in return for the reimbursement of the value.
(2) If a farm is part of the marital property, it may be directed that the farm should be assessed at the income value or at a price that is at least as high as the income value. The provisions of section 2049 governing succession apply.
(3) The right to take over the farm at the value or price set out in subsection (2) may also be granted to the surviving spouse.
Section 1516
Approval of the other spouse
(1) For the dispositions of a spouse set out in section 1511 to 1515 to be effective, the approval of the other spouse is necessary.
(2) The approval may not be given through an agent. If the spouse has restricted capacity to contract, the approval of his legal representative is not required. The declaration of approval must be notarially recorded. The approval is irrevocable.
(3) The spouses may also make the dispositions set out in sections 1511 to 1515 in a joint will.
Section 1517
Waiver of his share by a descendant
(1) The effectiveness of a contract by which a descendant of the spouses agrees with one of the spouses to waive his share of the marital property of the continued community of property or by which such a waiver is revoked for the eventuality that the marriage is dissolved by the death of that spouse is subject to the approval of the other spouse. The approval is governed by the provision of section 1516 (2) sentences 3 and 4.
(2) The provisions applying to the waiver of an inheritance apply with the necessary modifications.
Section 1518
Mandatory law
Arrangements that conflict with the provisions of sections 1483 to 1517 may not be made by the spouses, either by testamentary disposition or by contract. The right of the spouses to cancel by marriage contract that contract in which they agreed on continued community of property is unaffected.
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