Last Updated on July 1, 2021 by LawEuro
German Civil Code (BGB) German law
Division 5
Compulsory share
Section 2303
Person entitled to a compulsory share of the estate; amount of the share
(1) If a descendant of the testator is excluded by disposition mortis causa from succession, he may demand his compulsory share from the heir. The compulsory share is one-half of the value of the share of the inheritance on intestacy.
(2) The parents and spouse of the testator have the same right if they have been excluded from succession by disposition mortis causa. The provision of section 1371 remains unaffected.
Section 2304
Rules of interpretation
In case of doubt, the giving of a compulsory share is not to be considered as the appointment of an heir.
Section 2305
Additional compulsory share
If a person entitled to a compulsory share is left a share of the inheritance which is less than one-half of the share of the inheritance on intestacy, the person entitled to a compulsory share may claim from the co-heirs as his compulsory share the amount by which his share is less than one-half. Limitations and charges of the nature referred to in section 2306 are not taken into consideration when calculating the value.
Section 2306
Limitations and charges
(1) Where a person entitled to inherit a compulsory share who becomes an heir has been limited by the designation of a subsequent heir, the appointment of an executor, or a direction concerning the partitioning of the estate, or where he has been charged with a legacy or a testamentary burden, he may claim his compulsory share if he disclaims his share of the inheritance; the period for filing a disclaimer does not commence until after the person entitled to a compulsory share has obtained knowledge of the limitation or charge.
(2) If the person entitled to a compulsory share has been appointed a subsequent heir, this is equivalent to a limitation of the appointment of an heir.
Section 2307
Bequest of a legacy
(1) Where a legacy has been bequeathed to a person entitled to a compulsory share, he may claim his compulsory share if he disclaims the legacy. If he does not disclaim it, he is not entitled to the compulsory share up to the value of the legacy; when the value is calculated, limitations and charges of the kind stated in section 2306 are not taken into consideration.
(2) The heir who is charged with the legacy may specify a reasonable period for the person entitled to a compulsory share to declare whether or not he will accept the legacy. Upon the expiry of the period the legacy is deemed to have been disclaimed unless acceptance is declared before this time.
Section 2308
Avoidance of the disclaimer
(1) Where a person entitled to a compulsory share, who as an heir or a legatee is limited or charged in the manner stated in section 2306, has disclaimed the inheritance or legacy, he may avoid the disclaimer if the limitation or charge had ceased by the time of the disclaimer and this cessation was unknown to him.
(2) The avoidance of the disclaimer of a legacy is governed by the provisions governing the avoidance of an inheritance, with the necessary modifications. Avoidance is effected by declaration to the person charged.
Section 2309
Right of parents and remoter descendants to a compulsory share
Remoter descendants and the parents of the testator are not entitled to compulsory shares to the extent that a descendant who would exclude them in the event of intestate succession is entitled to demand a compulsory share or accepts the property left to him.
Section 2310
Determination of the share of the inheritance for the calculation of the compulsory share
In the determination of the share of the inheritance that is relevant for calculating the value of a compulsory share, the calculation is to include those persons who are excluded from succession by testamentary disposition or have disclaimed the inheritance or have been declared unworthy to inherit. A person who is excluded from intestate succession by renunciation of the inheritance is not included in the calculation.
Section 2311
Value of the estate
(1) The calculation of the compulsory share is based on the condition and value of the estate at the time of the devolution of the inheritance. In the calculation of the compulsory share of a descendant and the parents of the testator, the preferential benefit of the surviving spouse is not taken into account.
(2) The value is to be determined, to the extent necessary, by estimate. A valuation made by the testator is not authoritative.
Section 2312
Value of a farm
(1) Where the testator has directed, or where it is to be assumed in accordance with section 2049, that one out of more than one heirs should have the right to take over a farm forming part of the estate at its income value, then if this right is exercised the income value is also authoritative in the calculation of the compulsory share. Where the testator has fixed a different price for taking over the farm, this is authoritative if it is no less than the income value and no more than the estimated value.
(2) If the testator has only one heir, he may direct that the calculation of the compulsory share should be based on the income value or another value determined as specified in subsection (1) sentence 2.
(3) These provisions apply only if the heir who acquires the farm is one of the persons entitled to compulsory shares designated in section 2303.
Section 2313
Taking account of conditional, uncertain or unsecured rights; duty of determination of the heir
(1) In the determination of the value of the estate, rights and obligations that are subject to a condition precedent are not taken into account. Rights and obligations that are subject to a condition subsequent are taken into account as unconditional. If the condition is fulfilled, a reasonable adjustment must be made to cater for the change in the legal situation.
(2) For uncertain or unsecured rights and for doubtful obligations, the same applies as for rights and obligations that are subject to a condition precedent. The heir is obliged in relation to the person entitled to a compulsory share to ascertain an uncertain right and to pursue an unsecured right to the extent that this is compatible with orderly administration.
Section 2314
Duty of the heir to provide information
(1) If the person entitled to a compulsory share is not an heir, the heir must give him, on demand, information on the condition of the estate. The person entitled to a compulsory share may demand that he be called to participate in the drawing up of the inventory of the objects of the estate, in accordance with section 260, and that the value of the objects of the estate is determined. He may also demand that the inventory is drawn up by the competent public authority, or by a competent official or notary.
(2) The costs are charged to the estate.
Section 2315
Counting gifts towards the compulsory share
(1) The person entitled to a compulsory share must allow to be deducted from his compulsory share anything given to him as a gift by the testator by a legal transaction inter vivos with the provision that it should be deducted from his compulsory share.
(2) The value of the gift is added to the estate when determining the compulsory share. The value is determined on the basis of the date on which the gift was given.
(3) If the person entitled to a compulsory share is a descendant of the testator, the provision of section 2051 (1) applies with the necessary modifications.
Section 2316
Duty to adjust advancements
(1) If there is more than one descendant and, in the event of intestate succession, a gift by the testator or payments of the kind specified in section 2057a would be adjusted among them, the compulsory share of each descendant is determined by what would accrue to the share of the inheritance on intestacy, taking into consideration the duties to adjust advancements on the partitioning of the estate. A descendent who has been excluded from intestate succession by renunciation of the inheritance is not included in the calculation.
(2) If the person entitled to a compulsory share is an heir, and if the compulsory share under subsection (1) has a greater value than the share of the inheritance left to him, he may demand from the co-heirs the additional amount as his compulsory share, even if the share of the inheritance left to him is equal to or exceeds one-half of his share of the inheritance on intestacy.
(3) The testator may not to the disadvantage of a person entitled to a compulsory share exclude any gift of the kind specified in section 2050 (1) from being taken into account.
(4) If any gift to be taken into account under subsection (1) is at the same time to be deducted from the compulsory share in accordance with section 2315, it is to be counted at one-half of its value.
Section 2317
Creation and transferability of the claim to a compulsory share
(1) The claim to a compulsory share is created upon the devolution of the inheritance.
(2) The claim is inheritable and transferable.
Section 2318
Burden of the compulsory share in the case of legacies and testamentary burdens
(1) The heir may refuse the performance of a legacy with which he is charged to the extent that the burden of the compulsory share is borne proportionately by him and the legatee. The same applies to a testamentary burden.
(2) This reduction is permissible in relation to a legatee who is entitled to a compulsory share only to the extent that his compulsory share remains with him.
(3) If the heir is himself a person entitled to a compulsory share, he may, on account of his compulsory share burden, reduce the legacy and the testamentary burden to the extent that he retains his own compulsory share.
Section 2319
Person entitled to a compulsory share as co-heir
If one of more than one heirs is himself a person entitled to a compulsory share, he may, after the partitioning of the estate, refuse to satisfy another person entitled to a compulsory share to the extent that he retains his own compulsory share. The other heirs are liable for the shortfall.
Section 2320
Compulsory share burden on the heir taking the place of the person entitled to a compulsory share
(1) A person who becomes heir on intestacy in the place of a person entitled to a compulsory share must, in relation to co-heirs, bear the burden of the compulsory share, and must, if the person entitled to a compulsory share accepts a legacy given to him, bear the burden of the legacy in the amount of the benefit received.
(2) In case of doubt, the same applies to a person to whom the testator has, by disposition mortis causa, given the share of the inheritance of the person entitled to a compulsory share.
Section 2321
Compulsory share burden in the event of a disclaimer of a legacy
If a person entitled to a compulsory share disclaims a legacy given to him, the person who benefits from the disclaimer must, in the proportion of the heirs and the legatees to each other, bear the burden of the compulsory share in the amount of the benefit received.
Section 2322
Reduction of legacies and testamentary burdens
If an inheritance or a legacy disclaimed by a person entitled to a compulsory share has been charged with a legacy or a testamentary burden, the person who benefits from the disclaimer may reduce the legacy or the testamentary burden to the extent that he retains the amount required for the payment of the burden of the compulsory share.
Section 2323
Heir not charged with a compulsory share
The heir is prohibited from performing a legacy or a testamentary burden under section 2318 (1) to the extent that he is not required to bear the compulsory share burden in accordance with sections 2320 to 2322.
Section 2324
Deviating directions by the testator concerning the compulsory share burden
The testator may, by disposition mortis causa, impose the compulsory share burden, in the proportion of the heirs to each other, on one or more heirs, and may give directions deviating from the provisions of section 2318 (1) and sections 2320 to 2323.
Section 2325
Claim for the augmentation of compulsory shares in the event of gifts
(1) Where the testator made a gift to a third party, a person entitled to a compulsory share may claim, as an augmentation of his compulsory share, the amount by which the compulsory share is increased if the object given is added to the estate.
(2) A consumable thing is assessed at the value that it had at the time of the donation. Any other object is assessed at the value which it had at the time of the devolution of the inheritance; if its value was lower at the time of the donation, then only this value is taken into account.
(3) The gift is fully taken into account within the first year prior to the devolution of the inheritance, and is taken into account by one-tenth less within each further year prior to the devolution of the inheritance. If ten years have passed since the donated objected was given, the gift is not taken into account. If the gift was made to the spouse, the period does not commence until the dissolution of the marriage.
Section 2326
Augmentation to more than half of the share of the inheritance on intestacy
The person entitled to a compulsory share may claim the augmentation of his compulsory share even if one half of his share of the inheritance on intestacy has been left to him. If more than one-half has been left to him, such claim is excluded to the extent that he has been left more.
Section 2327
Receipt of gift by a person entitled to a compulsory share
(1) If a person entitled to a compulsory share has himself received a gift from the testator, the gift is to be added to the estate in the same way as a gift given to a third party, and at the same time is to be counted towards the augmentation granted to the person entitled to a compulsory share. The value of a gift to be taken into account in accordance with section 2315 is to be counted towards the total value of the compulsory share and the augmentation.
(2) If the person entitled to a compulsory share is a descendant of the testator, the provision of section 2051 (1) applies with the necessary modifications.
Section 2328
Heir himself as person entitled to a compulsory share
If an heir is entitled to a compulsory share himself, he may refuse the augmentation of his compulsory share to the extent that he would retain his own compulsory share, including what would be due to him as an augmentation of his own compulsory share.
Section 2329
Claim against the recipient of a gift
(1) To the extent that an heir is not obliged to augment a compulsory share, the person entitled to a compulsory share may, in accordance with the provisions concerning the return of unjust enrichment, demand from the recipient of a gift that he return it for the purpose of making up the shortfall. If the person entitled to a compulsory share is the sole heir, he has the same right.
(2) The recipient may avoid the return of the gift through the payment of the shortfall.
(3) Among more than one recipient of gifts, a prior recipient is liable only to the extent that a subsequent recipient is not obliged.
Section 2330
Gift arising from a moral duty
The provisions of sections 2325 to 2329 do not apply to gifts made to satisfy a moral duty or to give consideration to common decency.
Section 2331
Gifts made from marital property
(1) Half of a gift made from marital property under the community of property regime is deemed to have been made by each of the spouses. If, however, the gift was made to a descendant of only one of the spouses, or to a person of whom only one of the spouses is a descendant, or if one of the spouses has to make compensation to the marital property for the value of the gift, it is deemed to have been made by this spouse alone.
(2) These provisions apply with the necessary modifications to a gift made from marital property under continued community of property.
Section 2331a
Additional time
(1) The heir can demand additional time to satisfy the compulsory share if the immediate satisfaction of the entire claim would constitute an inequitable hardship for the heir on account of the nature of the objects of the estate, in particular if it would force him to give up his family home or to sell business assets that form the economic basis for the everyday life of the heir and his family. The interests of the person entitled to a compulsory share must be adequately taken into account.
(2) The probate court has jurisdiction over the decision on the claim for additional time, if it is not contested. Section 1382 (2) to (6) applies with the necessary modifications; the probate court takes the place of the family court.
Section 2332
Limitation
(1) The limitation period of the claim that a person entitled to a compulsory share has against a recipient of a gift under section 2329 commences with the devolution of the inheritance.
(2) The limitation of the claim to a compulsory share and of the claim pursuant to section 2329 is not suspended by the fact that these claims may be asserted only after the disclaimer of the inheritance or legacy.
Section 2333
Deprivation of a compulsory share
(1) A testator may deprive a descendant of his compulsory share if the descendant
1. makes an attempt on the life of the testator, of the spouse of the testator, or of another descendant or of a person similarly close to the testator,
2. is guilty of a major offence or of a serious intentional minor offence against one of the persons designated in no. 1,
3. wilfully violates the statutory obligation to the testator incumbent upon him to maintain the testator, or
4. is finally sentenced to at least one year’s imprisonment without probation because of an intentional criminal offence and participation of the descendant in the estate is hence unreasonable for the testator. The same applies if the accommodation of the descendant in a psychiatric hospital or in a withdrawal clinic is finally ordered because of a similarly serious intentional offence.
(2) Subsection (1) applies with the necessary modifications to the revocation of the parental or spousal compulsory share.
Section 2334
(repealed)
Section 2335
(repealed)
Section 2336
Form, burden of proof and ineffectiveness of deprivation
(1) The deprivation of the right to a compulsory share is effected by testamentary disposition.
(2) The reason for the deprivation must exist at the time when the disposition is made and must be stated in the disposition. For deprivation under section 2333 (1) no. 4, the offence must have been committed at the time of the establishment and the reason for the unreasonableness must apply; both must be stated in the order.
(3) The burden of proving the reason lies on the person who asserts the deprivation.
(4) (repealed)
Section 2337
Forgiveness
The right to deprive a person of his compulsory share expires as a result of forgiveness. A disposition by which the testator has directed the deprivation becomes ineffective as a result of forgiveness.
Section 2338
Limitation of the compulsory share
(1) If a descendant gives himself up to extravagance to such a degree or is so heavily indebted that his future livelihood is seriously endangered, the testator may limit the right of the descendant to a compulsory share by directing that after the death of the descendant his heirs on intestacy are to receive, as subsequent heirs or as subsequent legatees, the share which is left to him, or the compulsory share owed to him, in proportion to their shares of the inheritance on intestacy. The testator may also transfer the administration to an executor during the lifetime of the descendant; in such a case the descendant has a claim to the annual net proceeds.
(2) The provisions of section 2336 (1) to (3) apply with the necessary modifications to directions of this kind. The directions are ineffective if, at the time of the devolution of the inheritance, the descendant has permanently given up his extravagant life, or the heavy indebtedness creating the reason for such directions no longer exists.
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