🎁 Lifetime gifts and supplementary compulsory portion
In brief
Sometimes a person gives away a lot before death, for example a house. Less is then left in the estate. The compulsory portion would be correspondingly smaller.
That is why those entitled to a compulsory portion can, in some circumstances, demand compensation: the supplementary compulsory portion (Pflichtteilsergänzung).
The longer ago the gift was made, the less it counts. After ten years it is no longer taken into account.
For gifts to the spouse, the ten-year period starts only when the marriage is dissolved.
Step by step
- Gather giftsWhat was given away, and when? Secure receipts and contracts.
- Check the timingWere the gifts made more than ten years ago?
- Have the value determinedValuation is difficult. Get expert advice.
- Assert the claimsAgainst the heir, in some cases against the donee.
Deadlines
- Whether a gift counts depends on the individual case, for example on the timing.
- For gifts to the spouse, the ten-year period starts only when the marriage is dissolved.
- No information has been checked here on usufruct and rights of residence in connection with gifts.
In depth · legal basis, figures and practice – for advisers and professionals
Supplementary compulsory portion
§ 2325 BGB: if the testator made a gift to a third party, the person entitled to a compulsory portion can claim, as a supplement to the compulsory portion, the amount by which the compulsory portion would increase if the gifted item were added to the estate.
Valuation
According to the summary of the statutory text, consumable items are valued at their value at the time of the gift. Other items are valued at their value at death; if that value was lower at the time of the gift, the lower value is used.
Tapering
Under § 2325 Abs. 3 BGB, a gift made within the first year before death is taken into account in full, and within each further year before death by one tenth less. Once ten years have passed since the gifted item was transferred, the gift is disregarded. For spouses, the period does not start before the marriage is dissolved.
Claim against the donee
Under § 2332 Abs. 1 BGB, the limitation period of the claim under § 2329 BGB that the person entitled to a compulsory portion has against the donee starts on death.
Not checked
The requirements of the claim under § 2329 BGB in detail, exceptions for gifts made out of moral duty or propriety.
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