The Compulsory Portion in German Law
Kenneth GC Reid, Marius J de Waal, and Reinhard Zimmermann (eds.), Comparative Succession Law, Vol. III: Family Protection, Oxford University Press, 2020 Forthcoming
53 Pages Posted: 11 Dec 2019 Last revised: 20 Dec 2019
The compulsory portion of the German law of succession is a personal claim by a close family member of the deceased against the latter’s heir, or heirs, to receive the value of one half of his or her intestate share. The range of persons entitled to a compulsory portion is limited to the deceased’s descendants, his parents, and his surviving spouse. The right to a compulsory portion can be lost as a result of having been deprived of it by the deceased (which is possible in a limited number of situations), as a result of being unworthy to receive a benefit from the deceased’s estate, or as a result of having waived the right. All in all, the system enacted in the BGB has proved to be comparatively stable; even the amendments brought about in 2010 as a result of the Act on the Reform of the Law of Succession and Prescription were rather modest and have shifted the balance between freedom of testation and family solidarity only very slightly in the direction of freedom of testation. That can be taken as confirmation that, essentially, the rules of the BGB provide a solution that is both pragmatic and reasonable. The Federal Constitutional Court has even, in 2005, ruled that a certain minimum participation for children in a deceased’s estate not only does not contravene the constitutional guarantee of ‘property and the right of inheritance’ in Art. 14 (1) GG, but is itself protected by that provision.
Note: This pre-print version is published in the Max Planck Private Law Research Paper Series with the permission of the rights owner, OUP.
Keywords: compulsory portion, constitutional guarantee, deprivation rules (compulsory portion), family protection (law of succession), freedom of testation, law of succession, waiver (compulsory portion)
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