In Brief
02. Dec 2024

Inheriting despite divorce - The designation of an heir determined before getting married will prevail if no further provisions are put in place

The reciprocal will and testament of spouses would cease to be valid if prior to a testator’s death the marriage had been dissolved. However, the Federal Court of Justice (Bundesgerichtshof, BGH) had to rule on a special case where a married couple who had subsequently divorced had concluded a reciprocal contract of inheritance several years before their marriage took place and, in doing so, had overlooked a major provision.

The married couple had admittedly put in place arrangements with regard to their jointly purchased real estate business as to what would happen not only in the event that they stopped living together but also if they were to get married and divorced; however, there were no corresponding plans or provisions with respect to the reciprocal wills. After the death of his divorced ex-spouse, the question that now arose for the ex-husband was whether or not he had actually become the sole heir of his former wife through the contract of inheritance.

In its ruling of 22.5.2024 (case reference: IV ZB 26/23) the BGH established that the designation of an ex-marriage partner as an heir in a contract of inheritance would not become invalid solely because at the time when the contract was concluded the contractual partners were neither married nor engaged. Moreover, the lack of evidence of a unanimous desire to revoke the designation of an heir in the event of a subsequent marriage and divorce is not an indication that the provision is invalid. Therefore, despite the fact that the marriage had been legally dissolved, the deceased testator’s ex-husband became her sole heir.

Recommendation

If a contract of inheritance is concluded after the marriage takes place then there would be a legal presumption that the designation of an heir is due to the marriage. Given that this presumption would not apply if the parties to the contract were not married or engaged when the contract was concluded, in the event of a divorce it should be borne in mind that existing last wills and testaments have to be adapted or revoked.