Last Updated on July 1, 2021 by LawEuro
German Civil Code (BGB) German law
Division 4
Contract of inheritance
Section 2274
Entering into contract in person
The testator can enter into a contract of inheritance only in person.
Section 2275
Requirements
(1) A person can only enter into a contract of inheritance as testator if he has unlimited capacity to contract.
(2) A spouse may enter into a contract of inheritance, as testator, with his spouse, even if he has limited capacity to contract. In such a case, he requires the approval of his legal representative; if the legal representative is a guardian, the ratification of the family court is also required.
(3) The provisions of subsection (2) apply with the necessary modifications to engaged persons, including engaged persons in the meaning of the Civil Partnership Act [Lebenspartnerschaftsgesetz].
Section 2276
Form
(1) A contract of inheritance may be made only by being recorded by a notary in the simultaneous presence of both parties. The provisions of section 2231 no. 1 and sections 2232 and 2233 are applicable; what applies for a testator under these provisions also applies to each of the parties to the contract.
(2) For a contract of inheritance between spouses or between engaged persons that is joined with a marriage contract in the same document, the form prescribed for a contract of marriage suffices.
Section 2277
(repealed)
Section 2278
Permissible contractual dispositions
(1) In a contract of inheritance, each of the parties to the contract may make contractual dispositions mortis causa.
(2) Dispositions other than appointments of heirs, legacies and testamentary burdens may not be made contractually.
Section 2279
Contractual gifts and burdens, application of section 2077
(1) Contractual gifts and contractual burdens are governed by the provisions applying to testamentary gifts and testamentary burdens with the necessary modifications.
(2) The provision of section 2077 also applies to a contract of inheritance between spouses, civil partners or engaged persons (including engaged persons in the meaning of the Civil Partnership Act [Lebenspartnerschaftsgesetz]) to the extent that a third party is provided for.
Section 2280
Application of section 2269
If spouses or civil partners have provided in a contract of inheritance by which they mutually appoint each other heirs that the estate of both is to pass to a third party after the death of the survivor, or have made a legacy that is to be performed after the death of the survivor, the provision under section 2269 applies with the necessary modifications.
Section 2281
Avoidance by the testator
(1) A contract of inheritance may also be avoided by the testator on the basis of sections 2078 and 2079; for avoidance on the basis of section 2079 it is necessary that the person entitled to a compulsory share is alive at the time of the avoidance.
(2) If, after the death of the other party to the contract, a disposition made in favour of a third party is to be avoided, the avoidance must be declared to the probate court. The probate court should communicate the declaration to the third party.
Section 2282
Representation, form of the avoidance
(1) The avoidance may not be effected by an agent of the testator. If the testator has limited capacity to contract, he does not require the approval of his legal representative for avoidance.
(2) If a testator is incapable of contracting, his legal representative may avoid a contract of inheritance for him; if the testator is under parental custody or guardianship, the approval of the family court is necessary, if the legal representative is a custodian, that of the custodianship court.
(3) A declaration of avoidance must be recorded by a notary.
Section 2283
Period of avoidance
(1) Avoidance may be effected by a testator only within a period of one year.
(2) In the case of avoidance for duress, the period begins on the date on which the position of constraint ceases, and in the other cases on the date on which the testator obtains knowledge of the ground for avoidance. The provisions of sections 206 and 210, governing limitation, apply with the necessary modifications to the running of the period.
(3) If, in the case set out in section 2282 (2), the legal representative did not avoid the contract of inheritance in good time, the testator himself may, after his incapacity to contract has ceased, avoid his contract of inheritance in the same way as if he had been without a legal representative.
Section 2284
Confirmation
The confirmation of a voidable contract of inheritance may be effected only by the testator personally. If the testator has limited capacity to contract, confirmation is excluded.
Section 2285
Avoidance by third parties
The persons specified in section 2080 may no longer avoid a contract of inheritance on the basis of sections 2078 and 2079 if the right of avoidance of the testator is extinguished at the time of the devolution of the inheritance.
Section 2286
Dispositions inter vivos
A contract of inheritance does not restrict the right of the testator to dispose of his property by transaction inter vivos.
Section 2287
Gifts adversely affecting the contractual heir
(1) If the testator has made a gift with the intention of adversely affecting his contractual heir, the contractual heir may, after the inheritance has devolved upon him, demand from the recipient the return of the gift in accordance with the provisions relating to the return of unjust enrichment.
(2) The standard limitation period of the claim begins with the devolution of the inheritance.
Section 2288
Prejudice to the legatee
(1) If the testator has destroyed, removed or damaged the object of a contractual legacy with the intention of adversely affecting the person provided for, then, to the extent that the heir is thereby rendered incapable of performing the legacy, the value of the object replaces the object.
(2) If the testator has disposed of or created a charge on the object with the intention of adversely affecting the person provided for, the heir is obliged to procure the object or to remove the charge for the person provided for; the provision set out in section 2170 (2) applies with the necessary modifications to this obligation. If the disposal or charge is made by way of gift, the person provided for has, to the extent that he may not demand compensation from the heir, the claim specified in section 2287 against the recipient of the gift.
Section 2289
Effect of the contract of inheritance on testamentary dispositions; application of section 2338
(1) A prior testamentary disposition by the testator is cancelled by a contract of inheritance to the extent that it would adversely affect the right of a person provided for under the contract. A later disposition mortis causa is, notwithstanding the provision of section 2297, ineffective to the same extent.
(2) If the person provided for is a descendant of the testator who is entitled to a compulsory share, the testator may, by a later testamentary disposition, give the directions permitted by section 2338.
Section 2290
Cancellation by contract
(1) A contract of inheritance or an individual contractual disposition may be cancelled by contract between the persons who entered into the contract of inheritance. Cancellation may no longer be effected after the death of either of these persons.
(2) The testator may enter into the contract only personally. If he has limited capacity to contract, he does not require the approval of his legal representative.
(3) If the other party is under guardianship, the approval of the family court is necessary. The same applies if he is subject to parental custody, unless the contract is entered into between spouses or between engaged persons, including engaged persons within the meaning of the Civil Partnership Act [Lebenspartnerschaftsgesetz]. If the cancellation falls under the area of responsibilities of a custodian, the approval of the custodianship court is necessary.
(4) The contract must be in the form prescribed for the contract of inheritance in section 2276.
Section 2291
Cancellation by will
(1) A contractual disposition by which a legacy or a testamentary burden is directed may be cancelled by the testator by will. For the effectiveness of the cancellation, the approval of the other party to the contract is necessary; the provision of section 2290 (3) applies.
(2) The declaration of approval must be notarially recorded; the approval is irrevocable.
Section 2292
Cancellation by joint will
A contract of inheritance entered into between spouses or civil partners may also be cancelled by a joint will of the spouses or of the civil partners; the provision of section 2290 (3) applies.
Section 2293
Revocation in the event of reservation
The testator may revoke his contract of inheritance if he has reserved the right to do so in the contract.
Section 2294
Revocation in the event of the misconduct of the person provided for
The testator may revoke a contractual disposition where the person provided for is at fault for misconduct that entitles the testator to deprive him of his compulsory share, or, where the person provided for is not one of those entitled to a compulsory share, would entitle the testator to deprive the person provided for of his compulsory share if he were a descendant of the testator.
Section 2295
Revocation in the event of the extinction of a mutual obligation
The testator may revoke a contractual disposition, if the disposition is made in consideration of a contractual obligation of the person provided for to make periodic payments to the testator during the lifetime of the latter, in particular to provide support, and the obligation is cancelled before the death of the testator.
Section 2296
Representation, form of revocation
(1) The revocation may not be made by means of an agent. If the testator has limited capacity to contract, he does not require the approval of his legal representative.
(2) The revocation is effected by declaration to the other party to the contract. The declaration requires notarial recording.
Section 2297
Revocation by will
To the extent that the testator is entitled to revoke, he may cancel the contractual disposition by will after the death of the other party to the contract. In the cases set out in section 2294, the provision of section 2336 (2) and (3) applies with the necessary modifications.
Section 2298
Mutual contract of inheritance
(1) If both parties have made contractual dispositions in a contract of inheritance, the voidness of one of these dispositions results in the ineffectiveness of the whole contract.
(2) If revocation is reserved in such a contract, the whole contract is cancelled by the revocation of one of the parties to the contract. The right of revocation expires on the death of the other party to the contract. The surviving party may, however, if he disclaims the gift made to him by the contract, revoke his disposition by will.
(3) The provisions of subsection (1) and subsection (2) sentences 1 and 2 are not applicable if it is to be assumed that the parties intended otherwise.
Section 2299
Unilateral dispositions
(1) Either of the parties to the contract may, in the contract of inheritance, unilaterally make any disposition that may be made by will.
(2) For a disposition of this kind the same applies as if it had been made by will. The disposition may also be cancelled in a contract by which a contractual disposition is cancelled.
(3) If the contract of inheritance is cancelled by the exercise of the right of revocation or by contract, the disposition ceases to be effective, unless it is to be assumed that the testator intended otherwise.
Section 2300
Application of sections 2259 and 2263; removal from official or notarial custody
(1) Sections 2259 and 2263 apply with the necessary modifications to a contract of inheritance.
(2) A contract of inheritance which contains only dispositions mortis causa may be withdrawn from official or notarial custody and returned to the parties to the contract. The return may only be made to all of the parties to the contract jointly; the provision of section 2290 (1) sentence 2, (2) and (3) applies. If a contract of inheritance is revoked in accordance with sentences 1 and 2, section 2256 (1) applies with the necessary modifications.
Section 2300a
(repealed)
Section 2301
Promise of donation mortis causa
(1) A promise of a donation made subject to the condition that the donee survives the donor is governed by the provisions concerning dispositions mortis causa. The same applies to a promise to fulfil an obligation or an acknowledgement of debt of the kind described in sections 780 and 781, made by way of donation subject to this condition.
(2) If the donor executes the donation by delivery of the object given, the provisions concerning gifts inter vivos apply.
Section 2302
Unlimited testamentary freedom
A contract by which a person agrees to make or not to make, to cancel or not to cancel, a disposition mortis causa is void.
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