"Berliner Testament"

The "Berliner Testament" is a spouse's testament in which the children of both spouses do not become heirs of the first deceased. The assets of the first deceased are initially transferred completely to the other spouse. The assets inherited by the other spouse are not separated. So in the second case of inheritance the children only become heirs of the last deceased not also heirs of the first deceased. This also has tax implications, because the assets of the first deceased may be subject to inheritance tax twice.

Together the spouses can change the will at any time. However, a unilateral change of reciprocal dispositions during the lifetime of the other spouse is only possible through the service of a revocation declaration which must be notarized (§ 2271 BGB, § 2296 BGB). After the death of the other spouse, the revocation of reciprocal dispositions is no longer possible if the surviving spouse was not permitted to do so in the will.

The inheritances of the joint children are to be regarded as related to bills of exchange. As a result, the surviving spouse is bound to the will after the death of the partner and is basically no longer able to change it. You must therefore decide whether the surviving spouse should be free to change or revoke the inheritance of the children after the death of the other. It is also conceivable to grant the spouse only the right to change the inheritance quotas of the joint children in favor of other descendants (children, grandchildren).

The mutual appointment of the spouses as sole heirs of the first deceased also means that the children are disinherited with regard to the first succession. The Berlin will does not, however, lead to a cancellation of the right to a compulsory portion. Therefore, after the death of the first deceased, the children can still demand the compulsory portion from the surviving spouse. The person entitled to the compulsory portion does not become heir. He has only a claim in money against the heir.

In order to prevent children from claiming the legal portion, a "penalty clause" is occasionally included in the will, according to which a descendant who claims the legal portion on the death of the first deceased will only receive the legal portion, i.e. less than his full inheritance, even on the death of the last deceased. The descendant is to be prevented from claiming the compulsory portion.

The common will becomes invalid if the marriage is divorced before the death of one of the spouses. It is equal to the legally binding dissolution of the marriage if at the time of the death of the testator the conditions for divorce of the marriage were met and the testator had applied for or agreed to the divorce. If the divorce was applied for by the surviving spouse alone and the divorce proceedings have not been completed at the time of the death of the testator, the invalidity consequences for a decree of the deceased spouse do not apply.