28. Sep 16

OLG Rostock: Application of Pflichtteilsstrafklausel in a will

If, after becoming aware of what is termed a “Pflichtteilsstrafklausel” (compulsory portion penalty clause), an heir refrains from asserting his right to a compulsory portion of the estate, he will not be limited to this compulsory portion in the event of succession.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: In the case of a Berliner Testament (Berlin will), spouses mutually appoint each other as sole heirs and generally designate their children as final heirs. To prevent the children from demanding their compulsory portion following the death of the first spouse, it is possible to include a so-called Pflichtteilsstrafklausel in the will.

In most instances, a Pflichtteilsstrafklausel states that should a child assert his right to the compulsory portion in the estate after the first spouse has died, this compulsory portion shall then represent the full extent of his inheritance even following the death of the second spouse. Any claims to a greater share in the inheritance will have been forfeited. This clause does not kick in, however, if the child initially asserts his right to a compulsory portion after the death of the first spouse having been unaware of the penalty clause but subsequently stops pursuing his claim after becoming aware of it. In its ruling of December 11, 2014, the Oberlandesgericht (OLG) Rostock [Higher Regional Court of Rostock] held that the final heir is not limited to the compulsory portion under these circumstances.

In that case, a married couple had drawn up a Berliner Testament and mutually appointed each other as sole heirs. The will contained the following Pflichtteilsstrafklausel: “Sollte eines unserer Kinder nach dem Erstversterbenden den Pflichtteil fordern, soll es auch nach dem Letztversterbenden auf den Pflichtteil beschränkt sein.” (Should one of our children assert a claim to the compulsory portion after the first spouse has passed away, they shall be limited to the compulsory portion even after the death of the second spouse). While the daughter initially demanded her compulsory portion following her mother’s death, she abandoned this course of action after becoming aware of the penalty clause.

When the father subsequently passed away, a dispute emerged among the inheriting children. The daughter applied for a certificate of inheritance identifying herself and her brother as joint heirs. Her brother took the view that the sister was limited to the compulsory portion.

The OLG Rostock concluded that the daughter was not limited to the compulsory portion, ruling that the penalty clause had not been triggered. It went on to say that this would only be the case if claim were explicitly and earnestly laid to the compulsory portion with knowledge of the clause’s existence.

When it comes to matters pertaining to wills, lawyers who are versed in the field of succession law can offer advice.

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