Offsetting against the compulsory portion
However, the law stipulates that if the testator makes gifts to the person entitled to a compulsory portion during his or her lifetime, he or she can stipulate that the person entitled to a compulsory portion must allow these gifts to be offset against any subsequent compulsory portion.
If the later testator subsequently disinherits the person entitled to a compulsory portion, the latter is entitled to a compulsory portion. However, when calculating the claim to a compulsory portion, the value of the gift already received is then added to the deceased's actual estate (so-called fictitious estate). The compulsory portion quota of the person entitled to a compulsory portion is then applied to this fictitious estate. The benefit received is then deducted from the value calculated in this way.
This ensures that a disinherited child who has already received benefits from the testator does not benefit "twice".
The prerequisite for offsetting is always that an offsetting provision is made before or at the latest when the gift is made to the beneficiary of the compulsory portion. A subsequent agreement is no longer possible. The beneficiary of the compulsory portion should thus be given the opportunity to decide whether or not they wish to accept the gift with the offsetting provision.
The gift is generally taken into account at the value it had at the time of the gift (adjusted if necessary for the loss of purchasing power that has occurred in the meantime). Alternatively, the later testator also has the option of defining the value of the gift himself. The value may not be higher than the actual market value of the gift. Otherwise, the testator would be able to intervene in the legally defined right to a compulsory portion via the imputation provision.
The above explanation is intended to provide an initial insight into the topic of offsetting against the compulsory portion. It is not a substitute for advice in individual cases.
If you have specific questions or would like an assessment of your case, we will be happy to provide you with an initial consultation at any time. The costs of such a consultation amount to a maximum of EUR 190.00 plus VAT. The length of the consultation and the size of your assets are irrelevant.
Status: 19.10.2022