In addition to the claim to a compulsory portion, which is to be determined on the basis of the actual estate at the time of inheritance, the person entitled to a compulsory portion may also have a claim to a supplementary compulsory portion. A claim to a supplementary compulsory portion arises if the testator reduces his or her assets during his or her lifetime by making gifts to third parties. The gifted item is added to the estate. This is intended to prevent asset reductions during the testator's lifetime, which are not matched by any consideration, from reducing the entitlement to a compulsory portion. If the testator has made a gift to a third party, the person entitled to the compulsory portion can demand the amount by which the compulsory portion is increased if the item given as a gift is added to the estate as a supplement to the compulsory portion in accordance with Section 2325 (1) BGB.
In the context of a marriage, it is typical for spouses to make gifts to each other. These are usually not gifts, but so-called „marital gifts“. A so-called „marriage-related unnamed benefit“ or „marriage-related benefit“ exists if one spouse gives the other an asset for the sake of the marriage and as a contribution to the realisation and structuring, preservation or safeguarding of the marital partnership.
According to case law, such „marital gifts“ are treated as gifts under the law on compulsory portions if they are „objectively gratuitous“. This „objective gratuitousness“ is therefore the central distinguishing feature and prerequisite for a gift from one spouse to the other spouse to lead to a claim to a supplementary compulsory portion or to be relevant for the latter. However, as this is a legal term that can be understood in different ways, it is often unclear in practice whether a gift between spouses is „objectively gratuitous“ or not.
Is a contribution to the other spouse's pension scheme „objectively gratuitous“ and therefore subject to compulsory portion supplementation?
In a decision dated 27 September 1995, the BGH (case no. IV ZR 217/93) assessed the creation of a usufruct of a flat in favour of the other spouse in a specific case as an objectively gratuitous benefit. However, the BGH also stated that the obligation of one spouse to provide for adequate old-age provision may prevent a benefit from being categorised as „gratuitous“. However, this is not the rule. In the specific case, the BGH considered the assertion that the gift was made to provide for old age to be merely a pretence. In addition, the BGH held that the recipient was not dependent on the grant of usufruct to secure his old age.
The decision of the Federal Court of Justice has been criticised in the literature because the necessary safeguarding of marital living conditions and thus the protection of the constitutionally protected institution of marriage would not be taken into account if marriage-related gifts were generally treated as gratuitous transactions in inheritance law.
In a decision dated 16 February 2010, case no. 3 U 39/09, the Schleswig Higher Regional Court ruled that the Grant of usufruct for retirement provision in the specific case and therefore denied any effect on a claim to a supplementary compulsory portion. In doing so, the Higher Regional Court of Schleswig focussed on the fact that the retirement provision was appropriate according to the circumstances in which the spouses lived. The judgement as to whether an allocation is to be regarded as adequate provision for old age requires a comprehensive assessment of the income and financial circumstances of the spouses, as well as a forecast of their likely future development. In the specific case that the Higher Regional Court of Schleswig had to judge, the spouses had relatively modest incomes as pensioners (jointly € 1,580.00). The wife and heiress only had around € 1,200.00 at her disposal, including the disputed usufruct.
In its ruling dated 26 January 2011, case no. 19 W 52/10, the Higher Regional Court of Stuttgart Payment by the deceased into the private pension scheme of his wife in the amount of EUR 58,300.00 was assessed as an appropriate retirement pension and not as relevant for supplementing the compulsory portion due to the relatively low own and widow's pension.
In its judgement dated 27 October 2016, case no. 10 U 61/0, the Hamm Higher Regional Court Allocation of a widow's pension in the amount of DM 1,500.00 in favour of the wife in a property transfer agreement, despite the designation as a gift in the notarial deed, was qualified as a marital gift and no „gratuitousness“ was assumed. Here too, in the specific case and taking into account the living conditions of the spouses, the court considered the widow's pension to be an appropriate provision for old age.
Can maintenance payments to a spouse be „objectively gratuitous“ and therefore subject to compulsory portion supplementation?
No, maintenance payments are not gratuitous gifts. The existence of a gift subject to supplementation within the meaning of § 2325 BGB is therefore unproblematic if the donating spouse only fulfils a legal obligation, in particular a maintenance obligation.
Therefore, if one spouse lives in the house or flat owned solely by the other spouse or if only one of the spouses pays the rent for the jointly occupied flat, this is not free of charge in the context of marital maintenance and does not lead to an addition to the compulsory portion. Marital maintenance includes, among other things, the costs of housing, food, clothing, medical care, cultural needs, health and old-age provision, holidays, etc., which are usually granted in the form of maintenance in kind. In addition, each of the spouses is entitled to an appropriate portion of the total income as pocket money, i.e. a sum of money that should enable them to satisfy their personal needs as they see fit and of their own free choice, independently of any involvement of the other spouse (see BGH, judgement of 12 December 2012, case no. XII ZR 43/11, para. 26).