1. overview
Pursuant to Section 2303 (1) sentence 2 BGB, the right to a compulsory portion is half the value of the statutory inheritance share. The statutory inheritance share is therefore the starting point for determining the compulsory portion. It should be noted that the determination of the statutory inheritance share of the surviving spouse is only fictitious in order to determine the compulsory portion. The surviving spouse, who is entitled to a compulsory portion, does not become the legal heir, because the legal succession only applies if the testator has not determined a different succession by will or inheritance contract.
When determining the spouse's compulsory portion, the particularities of determining the statutory inheritance quota must therefore also be taken into account. The spouse's statutory inheritance share depends, on the one hand, on the matrimonial property regime in which the spouses were living at the time of the inheritance and, on the other hand, on which relatives of the deceased were living at the time of the inheritance
2. amount of the spouse's compulsory portion in the case of community of accrued gains
In Germany, the matrimonial property regime of the community of accrued gains applies to most married couples. This is the statutory matrimonial property regime that applies automatically unless the spouses have agreed otherwise. Only a marriage contract can change the matrimonial property regime and the spouses have the option of choosing between modified community of accrued gains, community of property or separation of property. Equalisation of accrued gains means that the spouse who has earned less assets than the other during the marriage is entitled to compensation (Section 1378 BGB). The entitlement to equalisation of accrued gains arises when the matrimonial property regime of community of accrued gains is terminated. This can be terminated in various ways, through death, divorce or a change in the matrimonial property regime. In the event that the community of accrued gains regime is terminated by death, the law contains special provisions, which will be discussed later.
3. determination of the fictitious statutory inheritance quota
If the deceased lived under the statutory matrimonial property regime of community of accrued gains, the amount of the spouse's statutory inheritance share initially depends on whether the deceased leaves close relatives in addition to the spouse, namely statutory heirs of the first or second order. In accordance with Section 1931 (1) BGB, the statutory inheritance share of the surviving spouse in addition to relatives of the first order (children, grandchildren) is ¼, in addition to relatives of the second order (parents, siblings, nephews and nieces of the deceased) or grandparents ½.
4. statutory spousal inheritance quota in addition to children of the deceased
If the deceased leaves children or grandchildren, the statutory inheritance share of the surviving spouse is initially ¼. In the community of accrued gains, this quarter is then increased by a further quarter for the purpose of the lump-sum equalisation of the surviving spouse's accrued gains in accordance with Section 1371 (1) BGB, so that the statutory inheritance share of the surviving spouse - as the starting point for determining the compulsory portion share - in this case amounts to a total of ½ (increased inheritance share).
5. statutory spousal inheritance quota alongside grandparents, parents, siblings or nieces of the deceased
However, if the deceased had no children but leaves behind siblings, for example, the spouse's statutory inheritance share is ½ in accordance with Section 1931 (1) BGB. This inheritance share is again increased by ¼ in the community of accrued gains in accordance with Section 1371 para. 1 BGB, so that the surviving spouse - if there were no testamentary disposition and he or she were therefore the legal heir - would be the legal heir alongside the deceased's siblings with a total quota of ¾.
6. large or small compulsory portion
Since, as just shown, the spouse's statutory inheritance share is increased by ¼ to equalise the gain, the question arises as to whether this increase should also be taken into account if the spouse does not become a statutory heir but claims his or her compulsory portion. As the compulsory portion pursuant to Section 2303 (1) sentence 2 BGB is half the value of the statutory inheritance share, the compulsory portion of the surviving spouse would amount to either ¼ or only 1/8 if the deceased leaves descendants (children, grandchildren), depending on whether or not the increase to equalise the gain is taken into account when determining the fictitious statutory inheritance share. If the deceased leaves no descendants, but leaves grandparents, parents, siblings, nephews or nieces, the compulsory portion would be either 3/8 (half of ¾) or only ¼ (half of ½), depending on whether or not the increase to equalise accrued gains is taken into account when determining the fictitious statutory inheritance quota.
7. small compulsory portion in the event of disinheritance of the spouse
If the surviving spouse is neither an heir nor a legatee, i.e. if they are not included in the testator's last will and testament, then the non-increased statutory inheritance share is assumed when determining the compulsory portion of the surviving spouse. In this respect, one speaks of the „small compulsory portion“ as half of the non-increased statutory spouse's inheritance share. In addition, the surviving spouse can demand compensation from the heir(s) for the actual gain realised by the deceased (Section 1371 (2) BGB). This is also known as the „matrimonial property law solution“. If the deceased leaves descendants, the small compulsory portion is therefore 1/8 (half of ¼). If the deceased leaves no descendants, but leaves grandparents, parents, siblings, nephews or nieces, the small compulsory portion is ¼ (half of ½).
8. large compulsory portion for gifts to the spouse
If the spouse is designated as an heir at will or has been bequeathed a legacy, the surviving spouse may disclaim the gift and, in addition to the small compulsory portion described above, claim compensation for the specific gain to be determined in accordance with the provisions that apply to the equalisation of gains in the event of divorce (Section 1371 (2) BGB). If the spouse does not waive the share of the inheritance or legacy granted to him or her, he or she cannot claim the actual gain. However, the spouse who has been designated as an heir at will or has been bequeathed a legacy can, under certain conditions, also claim the so-called large compulsory portion. The large compulsory portion corresponds to half of the increased statutory spouse's inheritance share. If the testator leaves descendants, the large compulsory portion is therefore 1/4 (half of 1/2). If the deceased leaves no descendants, but leaves grandparents, parents, siblings, nephews or nieces, the large compulsory portion is 3/8 (half of ¾).
This large compulsory portion is relevant if the surviving spouse has become a spouse or legatee, but has received less than this large compulsory portion in economic terms. In this case, the surviving spouse can also keep the allocation in accordance with Section 2305 of the German Civil Code (BGB) and also claim the so-called additional compulsory portion. The additional compulsory portion is then determined on the basis of the increased statutory spouse's inheritance, i.e. the large compulsory portion. If the surviving spouse decides not to waive the („small“) inheritance or the („small“) legacy and to claim the additional compulsory portion as a large compulsory portion, he or she cannot also claim the actual equalisation of gains. The surviving spouse can only do this if - as explained above - he or she rejects the bequest and claims the small compulsory portion. From the perspective of the spouse claiming the additional compulsory portion, however, the provision of Section 2305 BGB is particularly disadvantageous in that encumbrances of the type mentioned in Section 2306 BGB, i.e. in particular encumbrances due to legacies, are not taken into account when calculating the value.
The large compulsory portion is also important when asserting claims for a supplementary compulsory portion pursuant to Section 2325 BGB. Like the additional compulsory portion pursuant to Section 2305 BGB, these also do not require the beneficiary to waive the inheritance or legacy. When calculating an heir's or legatee's claim to a supplementary compulsory portion, the large compulsory portion must be assumed.
9. right to choose: matrimonial property law solution or large compulsory portion
The spouse who has been designated as an heir at law or who has been bequeathed a legacy therefore has the option of either disclaiming the legacy and then claiming the small compulsory portion and the specific gain to be calculated or accepting the co-heirship or the legacy and, if applicable, claiming the large compulsory portion as an additional compulsory portion or supplement to the compulsory portion. This requires a balancing of interests. The surviving spouse who has received a bequest should therefore clarify whether the specific equalisation of gains and the small compulsory portion are economically more interesting than the participation in the estate and, if applicable, an increase to the large compulsory portion. It may also have to be taken into account that the position as co-heir is also associated with a better position for obtaining information and that disposals of the estate are generally not possible without the consent of the co-heir. The position of co-heir therefore also has a strategic significance that should not be underestimated.
To avoid any misunderstandings: If the surviving spouse is neither an heir nor a legatee, i.e. is not included in the testator's last will and testament, he or she does not have the right to choose. The matrimonial property regime then automatically applies. The surviving spouse then receives the small compulsory portion and the gain equalisation to be calculated specifically.