A disputed liability of the estate is initially to be disregarded when calculating the compulsory share.
Anyone who is disinherited but is entitled to a compulsory share may claim this share from the heir. This amounts to half of the statutory share of the inheritance, which in turn depends on the specific circumstances of the inheritance. The decisive factor for the Calculation of the statutory share is the Net realisable value. Liabilities of the estate are therefore generally deducted from the assets at the expense of the person entitled to a compulsory share. Disputes between the heir and the person entitled to a compulsory share frequently arise when the heir disputes the existence of a estate liability, which a third party is claiming against the estate, is disputed. Naturally, the heir wishes to pay as little as possible in respect of the compulsory share, whilst the person entitled to the compulsory share wishes to receive as much as possible. The Higher Regional Court of Koblenz recently ruled that the heir must initially pay out the compulsory share as if the uncertain liability did not exist. If it subsequently transpires that the third party was justified in asserting a claim, this must be settled later between the heir and the person entitled to the compulsory share (Higher Regional Court of Koblenz, order of 14 August 2020, ref.: 12 W 173/20).
This decision is based on the following facts:
A mother disinherited her daughter, who is now asserting claims for a compulsory share and a supplementary compulsory share against her late mother’s heir. The heir acknowledges the merits of the claims but argues that there is a claim against the estate which, if it were in fact valid, would deplete the estate, meaning that ultimately the claimant’s claims to a compulsory share could not be satisfied. The defendant heiress is of the view that the claim against the estate does not exist. However, she wishes to withhold the compulsory share until the matter is clarified.
Under Section 2313(1), first sentence, and (2) of the German Civil Code (BGB), uncertain liabilities are to be disregarded when determining the value of the estate. The judges held that the claim asserted in the present case by the third party and contested by the defendant constitutes such an uncertain liability. The defendant was not entitled to set off the uncertain liability against the claims asserted by the claimant. The allocation of risk in this case clearly falls on the heir, which is the intention of the legislature. This means that the heir would initially have had to settle the claimant’s claim to the statutory share and the supplementary statutory share, calculated without taking the uncertain liability into account. If it were subsequently to transpire that the third party’s claim was in fact valid, the heir would have a claim for reimbursement against the beneficiary of the compulsory share in the amount of the overpayment (Section 2313(1), third sentence, of the German Civil Code (BGB)). The risk that this claim for repayment could no longer be realised was borne by the heiress.
This decision and the legislature’s assessment are to be welcomed from the perspective of those entitled to a compulsory share, but understandably not from the heir’s perspective. This is because she must now pay a compulsory share on the basis of a net estate value which may not actually exist to that extent. However, the law provides special protection for the disinherited close descendants of the testator, precisely to prevent the heirs from attempting to undermine or minimise the claim to a compulsory share by disputing the estate’s liabilities.
Have you been disinherited and are you considering claiming your statutory share, or are claims for a statutory share being made against you as the (sole) heir? Or do you have any questions about other matters relating to inheritance law, your rights, or your obligations? Please feel free to arrange an appointment. You can contact us by email at Willkommen@GWGL-Hamburg.de or by telephone on 040/300 39 86-0 there for you.