Compulsory Portion in Germany
Reinhard Zimmermann
Abstract
Abstract The compulsory portion of the German law of succession is a personal claim by a close family member of the deceased against the deceased’s heir, or heirs, to receive the value of one-half of his or her intestate share. The range of persons entitled to a compulsory portion is limited to the deceased’s descendants, his parents, and his surviving spouse. The right to a compulsory portion can be lost as a result of having been deprived of it by the deceased (which is possible in a limited number of situations), as a result of being ‘unworthy’ to receive a benefit from the deceased’s estate, or as a result of having waived the right. All in all, the system enacted in the German Civil Code (BGB) in 1900 has proved to be comparatively stable; even the amendments of 2010 as a result of the Act on the Reform of the Law of Succession and Prescription were rather modest and have shifted the balance between freedom of testation and family solidarity only very slightly in the direction of freedom of testation. This is often seen as confirmation that, essentially, the rules of the BGB provide a solution that is both pragmatic and reasonable. The Federal Constitutional Court has even, in 2005, ruled that a certain minimum participation for children in a deceased’s estate not only does not contravene the constitutional guarantee of ‘property and the right of inheritance’ in Article 14(1) GG, but is itself protected by that provision.