Matrimonial property regime: The influence of the matrimonial property regime on inheritance.

It is often forgotten that a marriage does not only end legally through a divorce, but also through the death of one spouse. In this case, the agreements made during one's lifetime regarding the marital property regime can have an influence on the later inheritance of the surviving spouse. The matrimonial property regime determines how the property relations between the spouses are regulated. In particular, if the testator has not made a testamentary disposition, the matrimonial property regime plays a decisive role.

 

A. What influence does the matrimonial property regime have on the estate?

First of all, it must be determined whether the spouses have concluded an agreement on the marital property regime by way of a marriage contract. If this is not the case, the statutory matrimonial property regime applies.

 

I. The legal matrimonial property regime, namely community of accrued gains

The community of accrued gains is the statutory matrimonial property regime if no corresponding agreements have been made. Pursuant to Section 1363, Paragraph 2, Sentence 1 of the Civil Code, in the community of accrued gains the respective assets of the spouses do not become their joint assets. However, in the gain achieved during the marriage is compensated at the end of the marriage. In addition to divorce, death is also considered to be a termination of the marriage. This means that, according to the law, upon the death of a spouse, the accrued gains must be equalized.

Pursuant to Section 1371 (1) of the German Civil Code, if the matrimonial property regime is terminated by the death of one spouse, the equalization of the gain is realized by the surviving spouse's statutory share of the inheritance being increased by one quarter of the inheritance. It is irrelevant here whether the spouses have achieved a gain in the individual case. Overall, under statutory inheritance law, the spouse receives an inheritance share of ½ if the decedent still has surviving heirs. However, this corresponds to only one option available to the surviving spouse to claim his or her accrued gain in the event of the death of the spouse. This is referred to as the lump-sum solution.

Example:
E's inheritance amounts to €100,000. He lived with his wife F under the statutory matrimonial property regime of community of gains and leaves two other joint children in addition to F. The spouse is entitled to a lump-sum settlement in the event of the death of the spouse.

According to the lump-sum solution, the wife is entitled to ¼ of the inheritance under the statutory inheritance law in accordance with section 1931(1) of the German Civil Code. In addition, the lump-sum increase of ¼ of the inheritance quota pursuant to section 1371 (1) is added. This results in a total inheritance quota of 1/2 for E. Thus, E inherits €50,000.

In addition, the surviving spouse has the option of claiming his or her calculated gain. Under certain circumstances, this may be more attractive for the spouse than the lump-sum distribution of the accrued gain. Pursuant to Section 1371(3), the surviving spouse may disclaim the inheritance and claim the compulsory portion in addition to the equalization of the accrued gain even if he or she would not be entitled to it under the provisions of the inheritance law.

Example:
E's inheritance amounts to €100,000. He lived with his wife F under the statutory matrimonial property regime of the community of accrued gains and leaves two other joint children in addition to F. E's inheritance amounts to €100,000. During the marriage, E earned a total gain of €100,000, while F earned a gain of €0.

If the surviving F disclaims her inheritance, she is entitled to the compulsory portion pursuant to § 1371 (3) BGB. The compulsory portion is calculated on the basis of half of the statutory share of the inheritance. The statutory share of the inheritance is reduced from ¼ to 1/8. Calculated on the basis of the amount of the estate, the amount of the claim to the compulsory portion is €12,500.

In addition, E is entitled to the distribution of the gain realized during the marriage. Pursuant to section 1378 (1), the surviving spouse is entitled to half of the surplus as a compensation claim. The fact that E achieved a gain of €100,000 during the marriage and F was unable to earn any, results in a surplus of €100,000. E is therefore entitled to a compensation claim in the amount of €50,000.

In total, E can therefore claim €62,500.

 

II. Modified community of gains

In practice, the legal matrimonial property regime of the community of gains is often modified. This is referred to as modified community of gains. In most cases, the equalization of gains is excluded for the case of divorce, but not for the case of death. The above calculations would not change in such a case. However, the situation would be different if the equalization of gains was also excluded in the event of death.

 

III. Separation of property

If the spouses have agreed on the matrimonial property regime of separation of property, the two spouses are regarded in terms of property law as if they were not married. From the perspective of inheritance law, the surviving spouse in the marital property regime of separation of property only receives an inheritance share in accordance with § 1931 BGB. If the decedent also left descendants, the spouse inherits only ¼ of the estate.

 

IV. Community of property

In the community of property regime, the respective assets of the spouses become joint assets pursuant to Section 1416 (1). In the event of inheritance, the surviving spouse inherits only ¼ of the estate in addition to heirs of the first order.