Compulsory portion - Waiver of the claim to a compulsory portion
Can I also waive a claim to a compulsory portion?
The death of the testator gives rise to the claim of the disinherited beneficiary of the compulsory portion to his or her claim to the compulsory portion. Unlike in the case of inheritance, the beneficiary of the compulsory portion has no possibility to waive the claim to the compulsory portion.
The waiver of a claim to the compulsory portion must be strictly distinguished from a waiver of the compulsory portion, because the latter is agreed with the testator himself or herself before the death of the testator and also requires notarization.
In principle, the compulsory portion becomes due upon the death of the testator. It should be noted that the claim to the compulsory portion is a claim to a sum of money which the person entitled to the compulsory portion must assert against the heir or the community of heirs.
If the testator offered the beneficiary of the compulsory portion during his lifetime to sign a waiver of the compulsory portion and the testator has since died, the question arises as to whether the waiver of the compulsory portion is to be reinterpreted as a waiver. In its decision of 13.11.1996, the Federal Supreme Court rejected such a reinterpretation (IV ZR 62/96).
If the beneficiary of the compulsory portion wishes to declare a waiver of the claim to the compulsory portion, a waiver agreement is required. The remission agreement within the meaning of Section 398 (1) of the Civil Code is a mutual agreement to which both the creditor and the debtor must agree. In this case, the creditor of the claim is the beneficiary of the compulsory portion and the debtor is the other heirs or the community of heirs.
The waiver agreement can be concluded without any formalities.
If the beneficiary of the compulsory portion is still a minor, family court approval will regularly be necessary (§ 1643 Paragraph 1, § 1854 No. 8 BGB). Exceptionally, this is not required if the child only becomes entitled to a compulsory portion as a result of the disclaimer of a parent (§ 1643 (2) sentence 2 BGB).
In principle, the beneficiary of the compulsory portion is in the stronger position in the contract negotiations due to his due claim. Nevertheless, it must always be ensured that the remission agreement is not contrary to good morals. This is to be assumed, among other things, if the beneficiary of the compulsory portion was subject to an error or was threatened.
If the contract of remission was validly concluded, the consequence is that the claim lapses in the amount of the contract of remission. In terms of its effect, the waiver agreement differs from the mere non-enforcement of the claim. In this case, the claim to the compulsory portion would not lapse directly, but would merely become time-barred over time.
