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Compulsory portion claim simply explained - everything about the compulsory portion claim

Summary

If the testator does not consider a relative in the will or inadequately, he has a right to a compulsory portion: He can demand half of his statutory portion of the inheritance. However, he does not automatically receive the compulsory portion - he must actively claim it from the heirs.

 

At a glance

  • The compulsory portion guarantees a minimum share in the inheritance.
  • Close relatives of the testator who would have inherited without a will are eligible.
  • There is a limitation period of 3 years.
  • The right to a compulsory portion is half of the statutory inheritance quota.
  • Compulsory portion calculators provide an initial overview of the amount to be expected.
  • In principle, you make claims after the inheritance - a lifetime payment is only possible in exceptional cases.
  • You can only bypass the compulsory portion claim completely in the rare case of a compulsory portion being withdrawn or by waiving the compulsory portion.
  • You can reduce the amount due by making gifts during your lifetime or changing the matrimonial property regime.

 

1. What is the compulsory portion?

The compulsory portion is a minimum participation in the inheritance. However, it can only be requested from certain relatives under certain circumstances of the testator. These must be entitled to a compulsory share and a valid one Compulsory portion claim to have. The right to a compulsory portion determines who has "priority" among all relatives entitled to compulsory portion. However, the right to a compulsory portion can also be omitted - for example, if a waiver of compulsory portion has been agreed.

A person without a valid entitlement to a compulsory portion cannot make any claims to the estate - so they miss out on the inheritance and the minimum participation through the compulsory portion. You can read below which requirements must be met for a person to have a right to the compulsory portion.

 

2. Who is entitled to a compulsory portion?

In principle, each testator can freely decide in his will or inheritance contract how his estate should be distributed. If the inheritance is disinherited, an inheritance that is too small or an inheritance encumbered, the compulsory portion can be claimed from some relatives. To do this, however, the person concerned must meet three requirements:

  • You must be entitled to a compulsory portion,
  • she must be entitled,
  • the entitlement to a compulsory portion must not yet be time-barred.

 

The right to a compulsory portion also applies in the event of disinheritance. B. excluded from inheritance by a Berlin will, it does not go away empty-handed. He receives a legally guaranteed inheritance share - the compulsory portion. This is half of your statutory inheritance claim.

 

2.1 Compulsory portion & entitlement to claim

The right to the compulsory portion is incumbent on only some of the testator's closest relatives - the persons entitled to compulsory portion. These are according to § 2303 BGB

  • all descendants of the testator (children, grandchildren and great-grandchildren) - marital, extramarital, with legitimation and adopted,
  • the spouse or registered partner of the deceased,
  • the parents of the testator.

However, a person entitled to a compulsory portion does not automatically have a compulsory portion at the same time. This entitlement is regulated by a ranking among the heirs:

  • In principle, children, spouses and registered partners have a right to a compulsory portion.
  • Grandchildren and great-grandchildren are only entitled after the deceased's children have died.
  • Parents are entitled to a compulsory portion if the deceased has left no children.

If a person is entitled to a compulsory portion and is entitled to a compulsory portion, they must still meet one last requirement for the compulsory portion: The claim to the compulsory portion must not yet be time barred.

 

2.2 Statute of limitations & deadlines for the compulsory portion

The compulsory portion claim is subject to a regular statute of limitations of three years according to §§ 195 and 199 BGB and must be asserted within this period. After becoming aware of the inheritance, those entitled have three years to claim the compulsory portion - once the deadline for the compulsory portion has passed, it can no longer be claimed. The limitation period begins at the end of the year in which the testator died. If a relative learns of the inheritance at a later point in time, the end of the year in which the information was obtained is considered the start of the period.

With our statute of limitations calculator, you can easily find out whether your compulsory portion claim or that of other people is still valid or has already expired:

Compulsory portion calculator - statute of limitations

 

 

You have a claim!

 

Your entitlement consists of:

Based on the data you have entered (time of death: / knowledge of death: / knowledge of disinheritance:) have a claim. Your entitlement to a compulsory portion expires on . In addition, you may be entitled to a compulsory portion supplement.

We would be happy to support you in claiming your compulsory portion and your entitlement to a supplementary portion. Arrange a free initial consultation with our experienced lawyers. Simply describe the matter briefly, send it and send one on the same day free initial assessment by phone received from our lawyer.

 

 

The claim is probably statute-barred

 

Your entitlement no longer exists:

Based on the data you have entered (time of death: / knowledge of death: / knowledge of disinheritance:) you have no claim. Your entitlement to a compulsory portion is already on statute-barred. However, there may be special regulations in your case that have inhibited the statute of limitations. This means that your compulsory portion could still exist.

We would be happy to discuss whether there is still a chance of your compulsory portion in your individual case free initial consultation with you. Briefly describe your situation and we will contact you as soon as possible for one free initial assessment by phone. Our specialized lawyers are at your side with their experience.

Receive a free initial assessment

* We do not assume any liability for the correctness and completeness of the calculations. In addition, this calculator does not replace legal advice. We recommend that you also consult a lawyer.

Further information on the statute of limitations for the compulsory portion, how the statute of limitations for the compulsory portion can be suspended and which special regulations exist, can be found in our article "Statute of limitations on compulsory portion".

 

3. How is the compulsory portion calculated?

A person with a valid compulsory portion should first calculate the amount of the compulsory portion - so that they can then claim the specific amount from the heir. As a pure monetary claim, the compulsory portion is calculated from the compulsory portion quota and the estate value.

 

3.1 Quota of compulsory portion & inheritance value

The compulsory portion determines the portion of the estate that a person with a compulsory portion is entitled to. It is half of the statutory inheritance quota - that is the portion of the inheritance that family members receive according to the legal succession. The legal succession takes into account all relatives who have a right to the inheritance in addition to the person entitled to a compulsory portion.

If you want to determine the exact compulsory portion quota, use our compulsory portion calculator.

In order to calculate the compulsory portion claim, in addition to the compulsory portion quota, the estate value is important. So that this can be determined, the heirs must, at the request of the person entitled to compulsory portion, draw up an inventory of the estate in which all assets, liabilities, contracts and gifts of the testator are listed. In this regard, persons entitled to a compulsory share have a statutory right according to Section 2314, which they can also enforce in court in the event of resistance from the heirs. You can also have individual items of the estate appraised by an appraiser in order to remove any doubts about the correctness of the list of estates.

If you would like detailed information on calculating the estate value, you will find this in our article "How much is the compulsory portion?"

If you know both the compulsory portion quota and the estate value, you can calculate how high your compulsory portion will be.

 

3.2 Compulsory portion calculator

When calculating the compulsory portion quota, many factors play an important role. With the help of our compulsory portion calculator you can easily calculate your compulsory portion or that of other people:

Compulsory portion calculator - Calculation of the compulsory portion

 

4. Claiming the compulsory portion ...

If a person has a valid compulsory portion and knows the amount of their compulsory portion, they can claim this from the heir. You can read below which steps are necessary for this and what must be observed.

 

4.1 ... in the event of inheritance

In the event of inheritance, the testator's assets pass directly to his heirs. If a relative learns of his disadvantages in relation to the estate when the will is opened or at a later point in time, the compulsory portion will not be automatically paid to him - even if he has a valid entitlement to compulsory portion. Rather, he must become active himself and claim the compulsory portion from the heir.

It can often be advisable to first talk to the heirs personally. If they refuse to cooperate, the claim for the compulsory portion can be asserted in writing - if necessary with an announcement of legal steps if the request is not complied with. If those entitled to a compulsory portion still encounter resistance, the compulsory portion action can be considered as a last resort.

You can find more information about the procedure for claiming the compulsory portion, helpful templates and details about possible costs in our article "Claiming compulsory portion".

 

4.2… during your lifetime

Family members often ask themselves whether they can claim the compulsory portion while the testator is alive. After all, for some people it is foreseeable even before the death of the testator that in the event of an inheritance they will probably not be given a small portion of the inheritance or not at all. In principle, however, the compulsory portion cannot be requested during the life of the testator - the claim to compulsory portion only arises with the death of the testator.

However, if relatives want to secure part of the inheritance while the testator is still alive, they are dependent on his cooperation. By waiving the compulsory portion you can waive your compulsory portion in exchange for the payment of a severance payment. Another possibility would be a donation in the amount of the compulsory portion in the sense of the anticipated succession.

 

4.3 ... if no agreement is possible - legal action

If the heirs do not pay out the compulsory portion or refuse to provide information about the estate, the claim to compulsory portion can also be enforced in court. The court at which persons entitled to a compulsory portion must file an action depends on the amount in dispute. The district court is responsible for a value in dispute of up to 5,000 euros, and the regional court is responsible for all amounts in dispute beyond this. A distinction is also made between two different types of action:

  • the step action, in which first the information and then the payment claim is sued,
  • the compulsory portion action, through which only the payment claim is enforced.

How the compulsory portion claim is enforced in court varies from case to case. You can find more information about the lawsuit process, possible costs and alternatives on our article "Claim a compulsory portion".

 

4.4 Payment of the compulsory portion

As mentioned before, the compulsory portion must be actively claimed from the heirs. If there is a valid entitlement to a compulsory portion, the heirs are obliged to pay. Since the compulsory portion is purely a monetary claim, a person entitled to a compulsory portion cannot, however, request a specific object of the estate - such as a certain piece of furniture, a car or a property. This in turn means for heirs that they often have to sell inheritance items so that they can pay off the compulsory portion.

If you are looking for more information on this topic - for example about the payment process, the request for information or the deferral of the compulsory portion - you will find it in our article "Paying out the compulsory portion".

 

5. Avoidance of the compulsory portion

It can often be a great burden for the community of heirs or the sole heir if they have to pay out a compulsory portion in addition to other inheritance obligations. Therefore, some testators may try to circumvent the compulsory portion or at least to reduce it. In the following, you can read about the options you offer here and what you need to consider.

 

5.1 Digging without a right to a compulsory portion

If a testator would like to disinherit a close relative or make the inheritance subject to certain conditions, he has two options:

  • the withdrawal of the compulsory portion - for example if there is culpable behavior according to § 2339 BGB such as an attempted homicide against the testator;
  • the waiver of the compulsory portion - a notarial contract in which the heir agrees to waive the compulsory portion in the event of inheritance (usually against payment of a severance payment).

In both cases, the potential heir loses his right to a compulsory portion and consequently gets nothing with regard to the estate. If you are looking for more information about circumventing the compulsory portion claim, you will find it in our article "Disrupting & compulsory portion".

 

5.2 Reduction of the compulsory portion

If it is not possible for the testator to completely withdraw the right to a compulsory portion from a relative, he still has some design options with regard to the compulsory portion. For example, the testator can reduce his or her assets and thus indirectly the right to a compulsory portion by:

  • Donations during his lifetime - whereby the testator should be aware of any claims to supplementary compulsory portions (see below);
  • Sale for annuity - for example, when a testator sells a property in exchange for an annuity payment;
  • the relocation of assets abroad - which can circumvent German inheritance law.

In addition, a testator can reduce the entitlement to a compulsory portion by influencing the statutory inheritance quota - and thus also the compulsory portion quota. The testator has two options for this:

  • the choice of property regime - depending on the property regime of the testator (community of gains, community of property or separation of property), the inheritance quota is distributed differently between parents and children;
  • the adoption of children - for example in the case of a second marriage in which children were brought with you.

With one of the above options or a combination of these, the testator can significantly reduce the entitlement to a compulsory portion. You can find more details on the individual options in our article "Avoiding the compulsory portion".

 

5.3 Defense against compulsory portion claims in the event of inheritance

If a testator has not taken any preventive measures with regard to the compulsory portion, the heirs must comply with the compulsory portion claims. As a rule, it is not possible to completely fend off the claim to a compulsory portion - the only exceptions are unworthiness of inheritance or a statute of limitations. However, the heirs can minimize the effort involved in the disbursement and process it as easily as possible. Strategies are also available to them in the event of payment difficulties - for example if the threat of forced sales means the loss of the home.

You can find detailed information on the strategies to defend against the compulsory portion, to reduce the disbursement effort and in the event of payment difficulties in our article “Defend against the compulsory portion”.

 

6. Entitlement to supplement the compulsory portion in the case of gifts during one's lifetime

If a testator diminishes his assets through donations during his lifetime, this may lead to a claim to a compulsory portion supplement: Depending on how long ago the donation was, persons entitled to compulsory portion have a right to compensation payments. These are then added to the compulsory portion. If a donation was made more than ten years ago, no more compensation claims can be made.

With our compulsory part supplement calculator you can easily find out whether you have a supplementary claim and how high it is:

Compulsory part supplement calculator - calculation & statute of limitations

 

You have a claim!
You are entitled to!

 

Your entitlement consists of:

Based on the data you have entered (time of death: / knowledge of death: / time of donation / knowledge of donation: / value of donation:) you have an entitlement to supplement the compulsory portion.

  • Your ordinary compulsory portion supplement claim (against gift recipients who are also heirs) becomes statute-barred on. You must have asserted it by then.
  • Your entitlement to supplement the compulsory portion against third parties (against gift recipients who have not become heirs) expires on. You must have asserted it by then.

We would be happy to support you in claiming your compulsory portion and your supplementary claim. Arrange a free initial consultation with our experienced lawyers. Simply describe the matter briefly, send it and send one on the same day free initial assessment by phone received from our lawyer.

 

The claim is probably statute-barred

 

Your entitlement no longer exists:

Based on the data you have entered (time of death: / knowledge of death: / time of donation / knowledge of donation: / value of donation:) you have no entitlement to a compulsory portion supplement. Your entitlement to supplement the compulsory portion is already statute-barred on. There may be special regulations in your case that inhibit the statute of limitations. So your claim could still exist.

We would be happy to discuss whether there is still a chance of your compulsory portion supplement in your individual case free initial consultation with you. Briefly describe your situation and we will contact you as soon as possible for a free initial assessment by telephone. Our specialized lawyers are at your side with their experience.

 

The claim has expired
You are entitled to € 0/0%!

 

Your entitlement no longer exists:

Based on the data you have entered (time of death: / knowledge of death: / time of donation / knowledge of donation: / value of donation:) you have no entitlement to a compulsory portion supplement. The 10-year period has already passed in full. There may be special regulations in your case that prevent the claim from expiring. . So your claim could still exist.

We would be happy to discuss whether there is still a chance of your compulsory portion supplement in your individual case free initial consultation with you. Briefly describe your situation and we will contact you as soon as possible for a free initial assessment by telephone. Our specialized lawyers are at your side with their experience.

Receive a free initial assessment

* We do not assume any liability for the correctness and completeness of the calculations. In addition, this calculator does not replace legal advice. We recommend that you also consult a lawyer.

You can find more detailed information on the subject in our article on the entitlement to supplementary compulsory portions.

 

7. Tip: free initial assessment in inheritance law

The compulsory portion is one of the most complicated matters in inheritance law. Whether there is a right to a compulsory portion depends on the individual family constellation and specific situation - statements can only rarely be made that can be generally applied to each case of inheritance. A lawyer can answer your questions.

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