Compensation obligation

Within the framework of intestate succession (i.e. without a will), descendants of the deceased inherit in equal shares. The same result can also result from a will of the testator (appointment of heirs in equal shares). The descendants must then divide the assets attributable to them on the death of the testator equally among themselves.

However, the law interferes with this system in certain constellations. Specifically, this means that certain gifts received by a descendant of the deceased (children, grandchildren, great-grandchildren) during the deceased's lifetime are equalized in the distribution of the estate. In this way, the legislator attempts to create what it considers to be a fair balance between the children. However, if the testator has appointed his descendants in a will in deviation from the statutory order of succession and therefore not in equal shares, the equalization does not take place. The testator obviously did not want his children to be treated equally.

Only certain gifts are to be equalized. In detail:

  • Endowments (link to the article "The endowment") that a descendant holds

  • Allowances from the testator that were to be used by the descendant as income or allowances for the education of the descendant, insofar as they exceeded a level corresponding to the financial circumstances of the testator (so-called excessive allowances)

  • all gifts for which the testator has expressly ordered equalization

All other gifts from the testator to a descendant are not to be offset.

Allowances to the deceased's spouse, siblings and parents are also not to be equalized.

Compensation is carried out as part of the division of the estate. In very simplified terms, the value of the gift is notionally added back to the existing estate. The fictitious total estate thus formed is then divided among the descendants according to the inheritance quotas. In the case of the descendant who has already received a benefit subject to compensation, the value of the benefit is then deducted from his or her share of the estate.

However, if the existing estate is not sufficient to carry out the aforementioned equalization, the descendant who has already benefited does not have to pay anything back. Reimbursement of a benefit subject to equalization is excluded.

The above explanation is only intended to provide an initial overview of the topic of equalization. It cannot replace 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 duration of the consultation and the size of your assets are irrelevant.

Status: 02.11.2022