Revocation for inheritance contracts and spouse's wills

Is it still possible to change or revoke the will after the death of the spouse?

In principle, the testator can revoke, amend or supplement his or her will at any time. He does not need the consent of the persons mentioned in the will or the consent of his spouse. However, something different may apply if a contract of inheritance has been concluded or spouses have drawn up a joint will. In such cases, the testamentary dispositions may be binding under certain circumstances.

Can inheritance contracts be revoked?

Not every disposition in a contract of inheritance must be binding. Initially only so-called "contractual dispositions" in an inheritance contract, § 2278 BGB, are binding. Such contractual dispositions can only be appointments, bequests or conditions. Other provisions, e.g. the order of execution of a will, are not contractual and therefore not binding. Whether the contracting parties wanted a contractual disposition and thus a binding effect can be inferred from the inheritance contract by interpretation in case of doubt. The determination whether a disposition in an inheritance contract is in conformity with the contract and therefore binding is all the more important as § 2299 BGB expressly allows the inclusion of unilateral - and therefore non-binding - dispositions. In individual cases, an inheritance contract may therefore contain both binding - contractual - and non-binding - unilateral - dispositions.

A contract of inheritance differs formally from a simple will in that the parties to the contract of inheritance must have their contract of inheritance certified by a notary public. A contract of inheritance that has only been privately agreed upon is ineffective and void. It has no legal effect. As a rule, the notary will also ensure that it is expressly determined which disposition in the inheritance contract is contractual and therefore binding and which is not.

What applies to a spouse's will?

A similar binding effect as in the contract of inheritance can also be achieved through a joint spousal will.

Spouses have the possibility to draw up a joint will. This is done in such a way that one spouse writes the will and both spouses sign the text. With such a spouse's will there can be - similar to the inheritance contract - a binding effect. If both spouses are still alive, each of the spouses can revoke their dispositions in the spouse's will. However, the revocation must be made by a notary public and a copy of the notarial deed must be sent to the other spouse. In this way it is ensured that the other spouse learns about the change or revocation of the dispositions of one of the spouses and can react to this by changing his or her dispositions.

After the death of one of the spouses, the surviving spouse can no longer revoke so-called change-related dispositions in a joint spouse's will. He is then bound. Should the surviving spouse nevertheless make other testamentary dispositions, for example appointing persons other than his or her heirs, these dispositions are invalid with respect to the original beneficiary.

This raises the question of which testamentary dispositions in a joint spouse's last will and testament are exchange-related. Dispositions relating to bills of exchange are those which can be assumed not to have been made without the other party's disposition. If it is not possible to determine, even by interpreting the last will and testament, whether the spouses wanted to have an exchange relationship, the law provides a rule in § 2270 (2) BGB.

According to § 2270 Abs. 2 BGB, in case of doubt, an exchange relationship is to be assumed if the spouses consider each other or if one spouse receives a benefit from the other and in the case of survival of the consideration a disposition is made in favor of a person who is related to the other spouse or otherwise close to him.

The "Berliner Testament" is the classical variant, in which, in case of doubt, several change-related dispositions are assumed. Thus the mutual appointment of the spouses as sole heirs is in this sense change-related. However, the appointment of the other spouse as sole heir to the other's estate is also reciprocal, with the joint children, or at least the children, being the final heirs.