Pre- and post-inheritance

The order of inheritance and the duration of use of the estate can be determined by the arrangement of prior and subsequent inheritance in a will.

When the succession occurs, the so-called prior heir becomes the heir first. The subsequent heir only becomes an heir when the prior inheritance ends (§2100 ff.). Accordingly, the prior and subsequent heirs are successive legal successors of the testator. Unless otherwise stipulated in the will (i.e. unless, for example, the date of remarriage is taken into account), the transfer of the prior and subsequent inheritance takes place upon the death of the previous heir. The reason for the arrangement of a so-called prior and subsequent inheritance is often that the previous heir should only benefit from the inheritance for a certain period of time or, if applicable, for the rest of his or her life. After the death of the previous heir, the assets should then pass to another person - the subsequent heir. The arrangement of prior and subsequent inheritance is a frequent instrument in so-called patchwork or divorce constellations. It is also common in so-called disabled wills.

If all co-heirs wish to withdraw from the community of heirs, a settlement agreement can be concluded. If the estate includes a property, for example, it is necessary to go to a notary. If desired, only a partial estate settlement agreement can be concluded initially, e.g. for existing cash/bank funds, and the money divided among the co-heirs according to their inheritance quotas. However, an agreement between the co-heirs is also required for a (partial) settlement agreement.

Within the scope of the prior inheritance, the prior heir is subject to certain obligations and also restrictions. These serve to protect the subsequent heir. As a rule, the prior heir may not access the substance of the inheritance but only its proceeds. In addition, the prior heir is restricted in his power of disposal, for example he cannot effectively dispose of land without the consent of the subsequent heir (Section 2113 (1) BGB). Furthermore, they may not give away any items of the estate. At the request of the subsequent heir, the previous heir is obliged to draw up an inventory of the estate.

Which approach is the most expedient is always a question of the individual case and depends in particular on whether all co-heirs are in agreement or not.

However, the testator can release the previous heir from some of the restrictions and obligations listed above. This is known as an "exempt prior inheritance". The testator can, for example, order that the previous heir may access the assets. He or she can also exempt them from the prohibition on selling real estate. However, certain restrictions and obligations are prescribed by law and cannot be waived.

It should be noted that the inheritance is inherited twice in the case of pre- and post-inheritance. As a result, inheritance tax is also payable twice. The assets are generally taxed as coming from the previous heir. Upon application, the relationship of the subsequent heir to the testator is decisive.

The above explanation is intended to provide an initial overview of the topic of prior and subsequent inheritance. 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 plus VAT. The duration of the consultation and the size of your assets/claim are irrelevant.

Status: 16.10.2023