Marital Residence and Real Estate After the Death of a Spouse

In addition to the emotional loss of a loved one, the death of a life partner often triggers concerns about the future for the surviving partner, especially when it comes to the question of whether they can continue living in the jointly inhabited property.

 

What happens to a rented apartment after the death of a spouse or life partner?

If the partner who signed the lease alone has passed away, § 563 paragraph 1 of the German Civil Code (BGB) offers the possibility for the surviving spouse or life partner to enter into the lease after the tenant's death, provided they have shared a common household with the tenant.

However, the right to enter the lease is contingent upon the condition of having shared a common household with the deceased. This implies that the apartment must have been their common place of residence. Temporary absence of a partner, such as due to work-related reasons or temporary separation or illness, is not detrimental. In the case of a longer absence, it is crucial whether there is an intention to continue the shared household in the apartment after the obstacle has been removed. Mere cohabitation, such as in a student flatshare, does not imply a shared household.

According to § 563 paragraph 3 sentence 1 BGB, the entry is considered not to have occurred if the entering person, i.e., the surviving spouse or life partner, informs the landlord within one month after becoming aware of the tenant's death that they do not intend to continue the lease.

The surviving partner's status as an heir is not relevant for automatic entry. Therefore, the partner can enter into the lease even if they have been disinherited or do not have statutory inheritance rights.

The landlord's rights are affected in the sense that they cannot choose their new tenant. Nevertheless, the landlord retains the right to terminate the lease with the statutory notice period within one month after becoming aware of the definitive entry into the lease. However, this is only possible if the landlord has a legitimate interest in termination, e.g., if the entering person is unable to pay rent.

If the lease was jointly signed by the spouses or life partners, the lease is automatically continued with the surviving partner.

 

What happens with the house or condominium owned by the deceased?

First, it is important to determine the ownership status of the mentioned property. It is crucial to establish whether the property was solely owned by the deceased or whether they held it in joint ownership.

 

1. What happens if the apartment was solely owned by the deceased spouse or life partner?

The answer to this question depends on whether the deceased made specific testamentary arrangements or not.

 

a. Testamentary Arrangements and Granted Right of Residence

In a will or inheritance contract, the deceased has the option to exclusively bequeath the property to the spouse or life partner. They also have the option, if they do not want to solely bequeath the property to the spouse, to grant the surviving partner a lifelong right of residence.

The right of residence is a real property right that entitles the beneficiary to use the property as a residence while excluding the owner. Granting a lifelong right of residence can be useful if property owners have transferred a property to their children during their lifetime. Such an early transfer has the advantage that it is no longer considered in the calculation of potential obligatory share supplement claims or that the applicable gift amount is reduced by 1/10 each year. Furthermore, the early transfer also offers inheritance tax benefits since gift tax exemptions can be claimed every ten years, whereas with inheritance, it's only applicable once.

The respective rights and obligations arising from the right of residence can vary based on the contractual arrangement. Typically, beneficiaries are allowed to use the property or parts of it for residential purposes. However, it should be noted that a right of residence excludes the possibility of renting out the property. Additionally, the beneficiary is not required to pay rent but is responsible for maintenance costs and ongoing utility expenses.

On the other hand, the heir or new owner usually has to undertake major renovation measures or restorations.

The registered right of residence cannot be sold or transferred to another person.

 

b. Legal Regulations

Without a corresponding testamentary disposition, the legal inheritance status of the surviving partner comes into play. If the surviving partner was neither married to the deceased nor in a registered partnership, they do not have inheritance rights if not designated by a last will.

If the partner was married to the deceased, they are entitled to a share of the inheritance according to § 1931 BGB. However, it should be noted that the extent of the spouse's share depends on the number of descendants, parents, and grandparents left behind.

If the deceased did not leave any other heirs, the surviving spouse is entitled to the entire inheritance according to § 1931 paragraph 3 BGB, including the property. However, if other heirs exist, a community of heirs is formed, and a division of the inheritance is required.

Nevertheless, according to § 1969 paragraph 1 BGB, the heirs are obligated to provide support to family members of the deceased who were part of the deceased's household and received maintenance from them during the first 30 days after the inheritance was acquired, to the same extent as the deceased did. They must allow the use of the residence and household items.

Regardless of the aforementioned 30-day period, it is crucial to consider the relationship among the heirs when real estate is part of the inheritance. Co-heirs who do not reside in the house or apartment have a claim to compensation for the use of the property. Additionally, each member of the community of heirs can demand their share of the inheritance, which leads to a division of the estate. In the case of valuable items like properties that cannot be easily divided, a mutual settlement often leads to selling, while a forced settlement results in a partition sale as part of a foreclosure auction.

If the co-heirs do not have sufficient financial means to buy out the others, an eviction in the long term may be unavoidable. Once the house purchaser has an eviction title, which they receive through the enforceable copy of the auction resolution in a foreclosure auction, eviction becomes imminent. Unless there is a prioritized right of residence or usufruct entered in the land register for one's own benefit. These rights continue to exist even after a foreclosure auction. Even if such a right expires due to a lower ranking, the auction resolution at least gives rise to a claim for compensation according to §§ 92 and 121 of the Foreclosure Act (ZVG).

 

2. What if the apartment was owned jointly?

If the property is jointly owned by the spouses, the portion left by the deceased contributes to the community of heirs.

So, if the deceased's spouse owned 50 percent of the property before their death, these shares continue to belong to the surviving spouse after the deceased's passing. The 50 percent owned by the deceased falls into the estate. If the spouses were married under the statutory community of gains regime, the surviving spouse is entitled to an inheritance share of ½. As a result, the surviving spouse inherits an additional 25 percent of the property, resulting in a total ownership share of 75 percent.

Do I need to make a land register correction?

The heirs of the property ownership have the obligation to correct the entry in the land register. Even if the deceased was a co-owner and the partner is still alive, the land register must be corrected to register the partner as the sole owner of the property.

The fees for changing the land register entry in the event of inheritance are free of charge in both cases witihin two years after the inheritance.