Legitimate Heirs in German Inheritance Law

Written by brian adler
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Legitimate Heirs in German Inheritance Law
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German inheritance law strictly controls the designation of legitimate heirs. Unlike under American and British common law, individuals are not generally free to disinherit potential heirs. And although Germany is a federal republic, inheritance laws are the same throughout all German states, and are governed by federal law. Heirs are divided into classes and "clans" depending on their relationship to the deceased. These divisions include the spouse, children, parents, grandparents and other relatives of the departed. Further, under German inheritance law, heirs inherit immediately; there is no legal "estate" as under common law.

Classes and Clans

Under German inheritance law, heirs are divided into three major classes. The first class includes the deceased's spouse and children. The second consists of the deceased's parents and the brothers and sisters. The third class is the deceased's grandparents. The descendants of any of the individuals in each of these three classes are deemed members of the individual's "clan." In other words, the children of the oldest son are members of the clan of the oldest son. Nieces and nephews are members of the clans of the deceased's brothers and sisters.

The Spouse's Share

According to German inheritance law, the spouse is entitled to a specific portion of the estate. The proportion is determined by the matrimonial property regime under which the couple lived. The matrimonial property regime refers to the precise set of laws that governed the couple's ownership of property. Under the system called Zugewinngemeinschaft, or "Community of Surplus," which applies to marriages without any special contracts or agreements, the spouse inherits one fourth of the overall estate. However, if by contractual arrangement, the married couple was living under Gütertrennung, or "Separation of Property," the spouse inherits equally with one or two children, and receives a quarter share if there were three or more children. Under the contractual Gütergemeinschaft, or "Community of Property," the spouse's share always stays at one quarter.

Inheritance by Class

If the deceased was married with children, the spouse and children inherit all the deceased's property. German inheritance law follows the idea that each higher class excludes the ones below. The children of a child--that is, the deceased's grandchildren--only inherit if the child dies before the decedent. Children (or their children) all inherit equally minus the proportion of the estate that goes to the spouse. If there is only a surviving spouse, but no other heirs in the first class, then the spouse inherits 50 per cent of the estate, with the remainder being divided among the appropriate heirs of the second class. If there are no second class heirs, the spouse inherits the entire estate.

Second and Third Classes of Inheritance

Under German inheritance law, the deceased's parents are the heirs of the second class. The two parents inherit the entire estate equally if there were no heirs of any higher class. If one parent is dead, the descendants of that parent inherit that parent's half of the estate. These would be the siblings or step-siblings of the deceased, and their respective descendants, or "clans." Shares would be divided equally among siblings and step-siblings. If neither parent is alive, then their descendants inherit completely. Property only descends to the third class in the event that there are no second class heirs. In this case, too, living grandparents inherit the entire estate, with the half belonging to one grandparent going to the descendants of a deceased grandparent. If both grandparents are dead, the whole property goes to their descendants in equal shares as in the case of other heirs.

Forced Inheritance and Inheritance of Obligations

German inheritance law does not normally allow for the disinheriting of legitimate heirs. If an individual dies intestate, or without a will, the estate is inherited by the appropriate legal heirs. If the individual makes a will that excludes, for example, one child, then that child has 3 years to make a claim for his inheritance. Normally, the excluded child would be awarded half the usual amount that is due to him. Heirs also inherit the full obligations and liabilities of the deceased. The heiress that inherits a house would inherit any mortgage or liens that are attached to the property. This is called "forced inheritance." However, the deceased's will or testament can only impose obligations on heirs of the first class. Testaments or contracts cannot be made in favour of an heir of the second or third class. These heirs can inherit only if there are no heirs of the first class.

Class and Inheritance Tax

According to a law passed in late 2008, inheritance taxes vary according to the nearness of relationship. There are three taxable classes. For tax purposes, parents and grandparents are Class 1, siblings and their descendants, stepchildren, and so on, are Class 2, and all other heirs are Class 3. The higher the class, the higher the taxes.

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