Legal right of inheritance of the spouse
If a spouse dies and there is no testamentary disposition from the deceased spouse, statutory succession applies. Only the relatives of the deceased and the spouse have a statutory right of inheritance. However, the spouse's statutory right of inheritance lapses in the event of divorce and even if the deceased had filed for divorce or consented to it before their death and the conditions for divorce were met at the time of the deceased's death.
Legal succession is based on an order of precedence. A relative of a lower order (e.g. descendant) excludes a relative of a higher order (e.g. parents). Within an order, succession takes place according to lineage. For example, within the first order, the children of a descendant who died before the testator take the testator's place.
But how is the inheritance quota of the spouse's statutory inheritance right determined?
In addition to the statutory heirs of the first order (descendants), the spouse's inheritance share depends on the respective matrimonial property regime:
In principle, the spouse inherits alongside the children with an inheritance quota of one quarter. If the spouses have not concluded a notarized marriage contract, the statutory matrimonial property regime of community of accrued gains applies. If the community of accrued gains is terminated by the death of a spouse, the equalization of accrued gains is realized by increasing the legal inheritance share of the surviving spouse by a quarter of the inheritance (lump-sum equalization of accrued gains). As a result, this matrimonial property regime means that the surviving spouse inherits half of the estate in addition to any children.
If the spouses have agreed on separation of property by means of a notarized marriage contract, the surviving spouse inherits one half in addition to one child, one third in addition to two children and one quarter in addition to three or more children.
In the case of a notarized community of property agreement, the surviving spouse inherits one quarter of the estate.
The inheritance share next to relatives of the second order (parents of the deceased and their descendants) or next to grandparents of the deceased is half plus the lump-sum equalization of gains of one quarter, so that the surviving spouse then inherits a total of three quarters. If, on the other hand, the matrimonial property regime is separation of property or community of property, the spouse inherits half in addition to the parents and their descendants and grandparents of the deceased.
If the deceased leaves only one grandparent, for example his paternal grandmother and her son, i.e. the deceased's uncle (other relatives of the third order), the inheritance share of the other maternal grandparents is initially accrued by the surviving grandmother and her son. However, the spouse's statutory inheritance law stipulates that the share that would go to the descendants of grandparents passes directly to the spouse. In this example, the spouse inherits seven-eighths under the community of accrued gains regime and the grandmother one-eighth. In the matrimonial property regime of separation of property or community of property, the spouse's inheritance share is three quarters, while the deceased's grandmother inherits one quarter. In all three cases, the deceased's uncle inherits nothing.
If there are only other relatives of the third order (descendants of the grandparents), the spouse inherits alone regardless of the matrimonial property regime.
Pursuant to Section 1932 of the German Civil Code (BGB), the surviving spouse can demand the so-called advance(https://www.voelker-gruppe.com/erbrecht/voraus/) from the heirs in addition to their statutory inheritance share.
The above explanation is intended to provide an initial insight into the subject of the spouse's statutory inheritance rights. 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: 05.04.2023