The surviving spouse’s inheritance – what exactly is it?
Every now and then, you hear people talking about the Death of a spouse under the law Bequest by the surviving spouse. But what exactly is it, and who is entitled to it, and under what conditions?
The advance constitutes a statutory advance bequest which entitles the surviving spouse to the Continuation of the Community budget is intended to enable this to continue as before.
It is set out in Section 1932 of the German Civil Code (BGB):
(1) If the surviving spouse is a statutory heir alongside second-degree relatives or grandparents, he or she is entitled, in addition to his or her share of the estate, to the items forming part of the marital household – provided they are not fixtures to a property – and to the wedding gifts as an advance. If the surviving spouse is a statutory heir alongside first-degree relatives, they shall be entitled to these items to the extent that they are necessary for the running of a reasonable household.
(2) The provisions governing legacies shall apply to the advance.
To better understand the provision, a brief explanation of the concept of intestate succession is required first.
The advance payment is only relevant in the case of intestate succession (Sections 1924 et seq. of the German Civil Code (BGB)), that is, if the deceased spouse did not leave a will. Under the rules of intestate succession, the surviving spouse generally inherits a share of the deceased spouse’s estate. The size of this share depends, on the one hand, on the couple’s matrimonial property regime and, on the other hand, on whether or not the deceased spouse leaves behind any children.
Under the most commonly chosen matrimonial property regime – the community of accrued gains – the surviving spouse inherits at least half of the estate in total.
If the deceased had no children, this share increases by ¼, so that the surviving spouse ultimately inherits ¼ + ½, i.e. ¾ of the estate. The remaining quarter is inherited by the heirs of the so-called second order. These are the testator’s parents or, should they have already died, the testator’s siblings. (Section 1931(1), first sentence, and (3), read in conjunction with Section 1371(1) of the German Civil Code (BGB)).
If, on the other hand, the deceased leaves children – that is, if there are first-degree heirs – the surviving spouse’s share of the estate remains at ½.
In both cases, the surviving spouse is not the sole heir but must „share“ the inheritance with others. This results in a community of heirs. Consequently, the testator’s entire estate passes to the heirs in proportion to their respective shares of the inheritance. For example, half of the deceased’s car now belongs to the surviving spouse, whilst the other half belongs to the deceased’s children.
Does the surviving spouse now have to share the food processor or the sofa with the other heirs?
This situation would be unpleasant and impractical for the surviving spouse, in whose household the items are kept and who therefore uses them on a daily basis, particularly as, following any division of the household effects, he or she would have to replace the items that have been handed over or disposed of.
This is where the provision of the Section 1932 of the German Civil Code (BGB). Accordingly, the surviving spouse is entitled, in addition to their share of the estate, to retain those household items which have hitherto formed the physical framework of the couple’s shared life. Household items are defined as all items which – regardless of their value – form part of the physical living space shared by both spouses in the context of their joint household, e.g. furniture, carpets, crockery, kitchen appliances, washing machines, radio, television and electrical appliances. Excluded are items that serve specific (professional, scientific or artistic) purposes or which, according to generally accepted standards, are considered to belong to the personal sphere of one spouse (e.g. clothing, jewellery, cosmetics). The food processor therefore does not have to be shared with the other co-heirs.
In the case of a car, a distinction must be made: if a car is used jointly by both spouses, it is to be regarded as a household item within the meaning of Section 1932 of the German Civil Code (BGB), even if the deceased was the sole owner of the car. If it was used exclusively by the deceased or for business purposes, it forms part of the estate.
However, Section 1932(1) of the German Civil Code (BGB) makes a distinction with regard to the scope:
If the deceased died without children, the surviving spouse is entitled to retain „the items forming part of the marital household“, that is to say, all household effects.
If, however, the deceased has left behind children, the surviving spouse is entitled only to household effects, „to the extent that they are necessary for the running of a reasonable household“. The relevant point in time for this is the date of the opening of the succession. What exactly constitutes the running of a appropriate What constitutes ‘household items’ is not defined by law. In any event, the claim cannot be considered reasonable if the surviving spouse already owns sufficient items of this kind or if they can reasonably be expected to replace them using their own funds. When weighing up the interests involved, the surviving spouse must accept a reduction in household goods due to their lesser needs. As is so often the case, therefore, it depends on the individual circumstances.
The surviving spouse may therefore claim the household effects for themselves to the extent described above as an advance and thus in addition to their share of the estate. The surviving spouse’s claim for the transfer of ownership of the household effects is directed against the community of heirs. For the community of heirs, this claim constitutes a liability of the estate within the meaning of. Section 1967(2) of the German Civil Code (BGB) there.
However, if the surviving spouse becomes a co-heir by virtue of a will or an inheritance agreement, is disinherited by the testator, waives their right to inherit or renounces the inheritance, they are not entitled to any statutory advance payment.
By the way: Registered civil partners are also granted a corresponding advance (Section 10(1), sentences 3 to 5 of the LPartG). However, the provision does not apply (by analogy) to cohabitation outside marriage.
In addition to household goods, this also includes wedding presents, that is, all gifts given free of charge on the occasion of the marriage. In the case of wedding presents from first-degree relatives, too, the recipient may only keep them to the extent that they are necessary for running a reasonable household.
Do you have any questions about statutory or voluntary succession? Or would you like to draw up a will to avoid statutory succession? We would be happy to advise you on all matters and issues relating to inheritance law. Please arrange an appointment. You can contact us by email at willkommen@gwgl-hamburg.de or by telephone on 040/300 39 86-0 We’re here for you and look forward to hearing from you or reading your messages.