6 What are the consequences of death?

At first, the spouse’s legal share is determined in accordance with the principles of inheritance law with respect to the deceased’s heirs. If the deceased leaves behind children or grandchildren, the legal share of the surviving spouse comes to one quarter of the estate (§ 1931 par. 1 BGB). If the deceased does not leave behind any children or grandchildren, his or her parents and siblings, just like the surviving spouse, are legal heirs (§ 1925 BGB). In that case, the surviving spouse’s legal share is increased to one half (§ 1931 par. 1 BGB). Only if the deceased leaves behind no parents, siblings, nieces, nephews or grandparents, the spouse will receive the entire estate (§ 1931 par. 2 BGB ).

The matrimonial property regime may impact on the actual share of the spouse at a second stage:

  • Under the community of accrued gains, the surviving spouse’s claim for equalization of a potential surplus is satisfied by increasing his or her legal share by a quarter of the estate (§ 1371 par. 1 BGB). For example, the surviving spouse would receive half of the estate if the deceased left behind children or grandchildren.
  • Under the regime of the separation of assets, the spouse would only receive the legal share. However, if the surviving spouse succeeds alongside a child/ two grandchildren of the deceased, the legal share will be increased to half/ a third of the estate (§ 1931 par. 4 BGB).
  • If, under the joint property regime, the marriage is dissolved by the death of one of the spouses, the deceased spouse’s share in the joint property is part of the estate. The succession of the surviving spouse takes place under the general provisions (§ 1482 BGB).

The spouses are free to choose alternative arrangements for inheritance upon death and to agree upon reciprocal provisions in the form of (joint) wills or contracts on inheritance. After the death of one of the spouses, a new will of the surviving spouse may not dispose of the property in a manner that runs counter to the provisions in a joint will or a contract on inheritance if these provisions are stipulated as mutually binding by the spouses (the surviving spouse’s new will, for example, cannot dispose of the spouses’ property to the detriment of common descendants who have been appointed on a mandatory basis as heirs to the whole estate following the death of his/her partner, cf. § 2269 BGB).