A spouse’s right of inheritance in the context of divorce proceedings
In Germany, divorce rates are admittedly currently decreasing. Nevertheless, in the long term, around one in three marriages will still end in divorce. Besides the manifold problems that then emerge, frequently, inheritance law issues initially recede into the background. However, unforeseen situations may arise should one of the spouses die during the divorce proceedings. This is especially true when the divorce proceedings take a very long time - as in a case that was recently decided by the Federal Court of Justice (Bundesgerichtshof, BGH).
Introduction - A spouse’s right of inheritance
Spouses are legally entitled to inherit from each other Besides the testator’s children, the surviving spouse generally inherits 1/4 of the estate. If the married couple lived under the statutory matrimonial property regime of the community of accrued gains, then the portion of the inheritance would go up by a flat rate of another quarter to half the estate.
If the deceased has no descendants but still has living parents, siblings, or nieces/nephews, then the spouse in the community of accrued gains would normally receive 3/4 of the estate.
In the case of a separation of property, the portion of the inheritance without children or alongside one child would be 1/2, alongside two children 1/3 and alongside three or more children 1/4.
Through a will it is possible to specify otherwise. However, a spouse is a beneficiary of a compulsory portion and is entitled to claim half the legal portion of the inheritance.
The specificities of the statutory right of the spouse to a share in the estate in divorce proceedings
If a marriage is legally dissolved, then the ex-spouse's statutory right of inheritance generally lapses in full. This also applies to the right to a compulsory portion.
Yet, what happens if a spouse dies before the divorce has become legally effective? In this respect, the Civil Code (Bundesgesetzbuch, BGB), in Section 1933, stipulates that a spouse’s right of inheritance would be excluded if, at the time of death, the preconditions for divorce had been fulfilled and the deceased had filed for divorce or consented to it. Therefore, separation alone and the completion of one year of separation would not yet result in the exclusion of the right of inheritance. A petition for divorce needs to be filed with the court as well. From this point in time, the respondent's right of inheritance is terminated, but not yet that of the petitioner. Therefore, if the respondent dies, the petitioner is still entitled to inherit if the respondent had not yet formally consented to the divorce - something that is frequently overlooked.
BGH decision in the event that the proceedings take a very long time
In the dispute that was ruled on, consent had however been given. In 2000, the wife had submitted the divorce petition. In 2003, at the first hearing, the petition was recorded and the husband agreed to it in principle. However, subsequent settlement negotiations about ancillary matters meant that no decision was reached and the proceedings were stayed. Almost 19 years (!) later, the husband died. One month prior to the death, the wife still declared the withdrawal of the petition for divorce and then asserted her supposed right of inheritance before the probate court - wrongly so, as the BGH has now decided in its ruling of 13.5.2026 (case reference: IV ZB 7/25).
In this respect, the crucial factor was that, in the oral hearing, the husband had already given his effective consent and there had been no indication that he no longer wanted to keep to this. At this stage, it is then no longer possible to withdraw the petition for divorce without the consent of the respondent.
The view, hitherto taken in legal literature and also by some courts, that a very long duration of proceedings or suspension excludes the applicability of Section 1933 BGB was clearly rejected by the BGH. Accordingly, even a long suspension period does nothing to alter the pendency of the divorce proceedings. In the opinion of the BGH, the aim of the provision is to comply with the hypothetical intention to no longer allow the spouse to share in the inheritance after the separation has taken place.
What applies in the case of wills or contracts of inheritance?
If the statutory right of inheritance of spouses is excluded because of the divorce proceedings, then last wills and testaments in favour of the spouse will likewise be ineffective. Something else would apply if it has to be assumed that the deceased would have made the testamentary disposition even in view of the divorce; however, the benefitting spouse would bear the full burden of presentation and of proof for this.
The presumption of invalidity only applies to testamentary dispositions through which the spouse would be provided for. The other provisions in a (joint) will or contract of inheritance remain valid in principle.
Special problem: under-age children
In the case of under-age children, you need to take into account that the surviving parent will be responsible for the care of the children’s property and will thus be given access to the children’s inheritance. In cases of separation, frequently, this does not reflect the deceased's intention, especially also in situations where companies or shareholdings in companies are part of the estate. Here, for example, one solution could be to exclude the care of property in the will and/or arrange for the execution of the will until the children come of age.
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