Even if a married couple has no children, this does not mean that the spouses automatically become sole heirs. That can only be achieved by means of a will or contract of inheritance.
GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: Even in the case of a childless married couple, the spouse does not automatically become the sole heir following the death of his or her partner. In the absence of a will or contract of inheritance, the rules of intestate succession will kick in under these circumstances as well. If the married couple had no children, the second-order heirs become part of the community of heirs according to the rules of intestate succession, e.g. the parents of the deceased. The spouse is only entitled to 75 per cent of the inheritance.
Even in the event that the testator’s spouse receives the lion’s share, it is always possible for problems to arise in connection with a community of heirs, especially if the estate includes immovable property. This can lead to the surviving spouse being faced with a financial burden. Those who wish to prevent this from happening and provide their partner with economic security should therefore prepare a will or contract of inheritance that designates the spouse as the sole heir whilst having regard to statutory claims to a compulsory portion.
A will intended to ensure the financial security of one’s spouse is also a good idea if the marriage gave rise to any children who are also entitled to inherit. A popular form of will from this perspective is the “Berliner Testament” (Berlin will). With this type of spousal will, the spouses mutually appoint each other as sole heirs and generally the children as final heirs. This means that the children do not inherit anything until both parents have passed away. Having said that, they are able to assert their right to a compulsory portion after the death of the first parent. For this reason, it is advisable to include a so-called “Pflichtteilsstrafklausel” (compulsory portion penalty clause) in the will.
Anybody who decides to draw up a will ought to make sure that the testamentary dispositions are written as accurately and in as much detail as possible. This will prevent any scope for interpretation which may have the potential to result in disputes among the heirs. Lawyers who are experienced in the field of succession law can advise on all issues pertaining to wills and contracts of inheritance.
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