It is possible for children who are appointed as final heirs in a Berliner Testament (Berlin will) to ultimately come away empty-handed. To afford the children greater protection, a so-called Wiederverheiratungsklausel (remarriage clause) can be inserted into the will.
GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: In cases involving a Berliner Testament, also referred to as a spousal will, spouses mutually appoint each other as sole heirs. In most cases, the children they have in common are then appointed as final heirs, i.e. they will not come into their inheritance until both parents have passed away. This entails a certain degree of risk for the children, since it is possible for the estate to have been exhausted by that point in time. Things can become particularly problematic if after the death of the first spouse the surviving partner remarries, because the new partner is then entitled to inherit as well.
A remarriage clause can afford protection for the children’s inheritance in this instance. The provision stipulates that in the event that one of the spouses marries again, the final heirs as defined in the Berliner Testament shall inherit at the time of this marriage. This effectively separates the surviving spouse’s assets, with the partner to die first’s estate only going to the children who were appointed as final heirs. The new spouse is then only entitled to inherit his or her own assets. That being said, when it comes to these types of remarriage clauses, it is important to be mindful of the proper wording to ensure that there is no room for interpretation and no inheritance disputes at a later date. It must also be borne in mind that it is possible for these kinds of clauses to be construed as contrary to public policy.
This is because remarriage clauses are not allowed to encroach upon the surviving spouse’s freedom to marry and put disproportionate pressure on him or her based on the fact that he or she could lose their inheritance owing to the second marriage. One possible alternative is to convert sole heir succession into preliminary succession for life. In doing so, the children’s inheritance would remain protected.
When it comes to drawing up a will, there are many pitfalls and statutory regulations that need to be observed, and it is generally not possible for a layperson to keep track of all of these. It can therefore be helpful to seek the legal advice of lawyers who are experienced in the field of succession law when drafting a will, Berliner Testament or contract of inheritance.