The starting point of the limitation period for a claim for a supplementary compulsory share following a retrospective, post-mortem determination of paternity (Federal Court of Justice, judgment of 13 November 2019, Case No. IV ZR 317/17)
Federal Court of Justice (BGH), judgement of 13 November 2019, Case No. IV ZR 317/17:
The Federal Court of Justice (BGH) had to rule on whether a descendant’s claim against the co-heirs who had received gifts for a supplementary compulsory portion is time-barred even if the descendant entitled to the compulsory portion only learnt, eight years after the testator’s death, that the testator was his biological father.
The judges concluded that, in accordance with Section 2329 of the German Civil Code (BGB) the claim for a supplementary compulsory share to which the beneficiary is entitled under Section 2332(2) of the German Civil Code (BGB) The previous version also provided that, in the event of a post-mortem determination of paternity, the limitation period was three years from the date of the opening of the succession.
This decision is based on the following facts:
The claimant is bringing a multi-stage action against the defendants – his half-siblings and the deceased’s legal heirs – seeking disclosure, a valuation and consent to enforcement proceedings in respect of gifts subject to the obligation to make a supplementary payment under the deceased’s estate.
When the claimant was born in 1964, his mother was married in her first marriage. Following the divorce from that marriage, the claimant’s mother married the deceased, from whose first marriage the two defendants were born. That marriage also ended in divorce.
In 1995 and 2002, the testator transferred several plots of land to the defendant by way of gift, reserving a right of usufruct over each of them. The testator died in 2007. In 2012, the claimant contested the paternity of his mother’s first husband, who had since died. A ruling issued in 2015 established that the claimant’s father was not his mother’s first husband, but the deceased.
The claimant then requested, amongst other things, that the defendants provide information regarding the contents of the estate, whereupon the defendants drew up an inventory of the estate showing a negative net value. The defendants also raised the defence of the limitation period.
In November 2015, the claimant finally brought the staged action, which was dismissed by the Regional Court and the Higher Regional Court. The claimant continued to pursue his claims by way of an appeal in cassation, which was granted by the Higher Regional Court. The Federal Court of Justice also dismissed the claim and gave the following reasons for its decision:
In principle, following the final and retroactive determination of the testator’s paternity, the claimant does indeed fall within the group of descendants entitled to a compulsory share. However, any claims for a supplementary compulsory portion under section 2329 of the German Civil Code (BGB) were already time-barred upon receipt of the statement of claim pursuant to section 2332(2) of the BGB (old version), with the result that the claims for information and valuation, which were asserted in a preparatory stage of the proceedings, are unfounded. Pursuant to Section 2332(2) of the BGB (old version), the claim for a supplementary compulsory portion becomes time-barred three years after the testator’s death. The testator died in 2007, but the action was not brought until 2015 – following a successful challenge to paternity.
This conclusion is not affected by the fact that the claimant was only able to assert the associated legal consequences and any claims to a compulsory share (or supplementary share) once the 2015 order establishing the testator’s paternity had become final.
The Senate ruled that
- the start of the limitation period is not delayed by the suspension of the exercise of rights under section 1600d(4) of the BGB (old version),
- the limitation period is not suspended until paternity of the testator has been established by a final and binding decision, and
- an interpretation of Section 2332(2) of the Civil Code (BGB), as previously in force, that is consistent with the Constitution is not required, and that
- that the defendants’ raising of the defence of limitation did not constitute an impermissible exercise of their legal rights.
The judges explained this in detail as follows:
According to Section 1600d(4) of the German Civil Code (BGB) Under the previous version of the Civil Code (a.F.), the legal effects of paternity could, in the present case, only be invoked from the date of its – retroactive – determination (the so-called ‘bar on the exercise of rights’). It is disputed whether this bar on the exercise of rights prevents the limitation period, as defined in section 2332(2) of the BGB (old version), from commencing until the post-mortem determination of paternity becomes final. The Senate ruled that the bar on the exercise of rights did not preclude the commencement of the limitation period. The fundamental principle of the law on limitation periods is that certain factual circumstances which have existed unchallenged for a prolonged period should no longer be called into question in the interests of legal peace and legal certainty. It is therefore necessary to adhere strictly to the wording of the relevant limitation provision. According to the unambiguous wording of Section 2332(2) of the German Civil Code (BGB) (old version), the commencement of the limitation period depends solely on the date of the opening of the succession. Postponing the start of the limitation period to a potentially indefinite time would amount to a reversal of the statutory assessment. The recipient of the gift has a legitimate interest in being able to be certain, after a short period and regardless of the level of knowledge of the person entitled to a compulsory share, that they will not have to return the gift.
Furthermore, the Senate held that the limitation period was not suspended until paternity had been established with legal effect. A corresponding application of the Section 205 of the German Civil Code (BGB), according to which the limitation period is suspended for as long as the debtor is temporarily entitled to refuse performance on the basis of an agreement with the creditor, is not applicable in the present case. The decisive factor is whether the parties’ intention forms the basis of the right to refuse performance. A corresponding application to cases in which this basis for assessment is not present is ruled out. This also applies to the bar on the exercise of rights under section 1600d(4) of the BGB (old version), as it is not based on the will of the parties.
The Senate also ruled out a suspension of the limitation period pursuant to Section 206 of the German Civil Code (BGB). According to this provision, the limitation period is suspended for as long as the creditor is prevented from pursuing legal action due to force majeure within the last six months of the limitation period. However, this provision – which must be interpreted narrowly in the debtor’s interest – does not permit any correction of the legislature’s assessments of value. The limitation rule in section 2332(2) of the BGB (old version) must therefore not be circumvented by section 206 of the BGB either.
Nor is a constitutional interpretation of Section 2332(2) of the Civil Code (BGB), as previously in force, required in the present case. It is true that the statutory provision affects both the Article 14(1) of the Basic Law protected inheritance rights as part of property law, as well as those arising from Article 6(1) of the Basic Law the legal rights of children born in and out of wedlock, as it restricts the enforceability of the claim for a supplementary compulsory portion regardless of when that claim arose – even if retrospectively. Nevertheless, this does not constitute a breach of the claimant’s fundamental rights. This is because the protection of the recipient justifies setting a reasonable time limit within which the recipient can ascertain whether or not they are required to surrender a gift to the beneficiary of the compulsory portion. Otherwise, the recipient would be exposed to unforeseeable liability risks.
Furthermore, section 2332(2) of the German Civil Code (BGB), as previously in force, is also consistent with Article 6(5) of the Basic Law compatible. According to this, the law must ensure that children born out of wedlock are afforded the same conditions for their physical and emotional development and their position in society as children born within wedlock. The limitation period provision in Section 2332(2) of the Civil Code (BGB), as previously in force, does not place children born out of wedlock at a direct disadvantage compared with children born in wedlock. This is because, under Section 2329 of the BGB, children born in wedlock must also assert their claims against donees within three years of the opening of the succession. However, in the present case, the claimant is at least indirectly disadvantaged. Such unequal treatment – which occurs only in very rare exceptional cases – is, however, justified by objective reasons that are not linked to whether the child was born in or out of wedlock. The limitation period provision in Section 2332(2) of the BGB (old version) is based on the interest of the person to whom the testator made a gift during his lifetime in legal certainty, which exists irrespective of when the descent of the descendant entitled to a compulsory portion from the testator is established. The interests of the donee outweigh the interest of the non-marital child in postponing the start of the limitation period until the determination of paternity becomes final. This is because, as a rule, the non-marital child entitled to a compulsory portion is sufficiently protected by the fact that they have claims for a supplementary compulsory portion against the heir who received the gift in accordance with Section 2325 of the German Civil Code (BGB) could invoke, which is subject to the ordinary, knowledge-based limitation period (Sections 195 and 199 of the German Civil Code (BGB)) are subject to. Only if these claims were unsuccessful would claims for a supplementary compulsory share under Section 2329 of the German Civil Code (BGB) be considered. In any extreme cases, for example where the defence of limitation is raised in bad faith, justice in individual cases might, where appropriate, take precedence over Section 242 of the German Civil Code (BGB) be created.
Finally, according to the Senate, the defendants were not precluded from raising the defence of limitation under Section 242 of the German Civil Code (BGB) on the grounds of an improper exercise of rights. This would only have been the case if there had been special circumstances which would have made the defence appear to be a gross breach of good faith, for example if the defendants had prevented the claimant from bringing the action in good time. No such special circumstances were apparent in the present case, even though one of the defendants stated, in the context of the paternity proceedings, that he had grown up with the belief that the claimant might be his half-brother.
Consequently, the Federal Court of Justice dismissed the claim as unfounded on the grounds that the limitation period had already expired.
Although this case relates to section 2332 (old version), it once again highlights how important it is to keep an eye on the limitation periods. In particular, in the case of claims for a supplementary compulsory share against the beneficiary, it should be noted that these become time-barred three years after the testator’s death. Knowledge of the exact circumstances is therefore irrelevant. Consequently, where there are doubts as to paternity, we recommend initiating post-mortem paternity proceedings without delay in order to be able to assert any claims under inheritance law within the prescribed time limit.
We would be happy to advise you if you are considering asserting your statutory share (or supplementary share) claims. Talk to us!