In Germany, spouses commonly live under the statutory marital property regime of accrued gains, unless they have entered into a marital agreement. Contrary to a widespread misconception, the spouses’ assets do not become joint property during the marriage. Each spouse remains the owner of their own assets. Only when the marital property regime ends (such as upon divorce or the death of one spouse) is the increase in assets accumulated during the marriage (accrued gain) equalized.
Inheritance and legal share under the German accrued gains regime
If one spouse dies and leaves children in addition to the surviving spouse, the spouse’s statutory share of the estate is one-fourth. Because the spouses were subject to the accrued gains regime, this share is increased by a flat additional one-fourth pursuant to Section 1371(1) of the German Civil Code (BGB), so that the surviving spouse ultimately inherits one-half of the estate. This flat increase is intended to account for the accrued gains generated during the marriage without requiring the spouses’ individual changes in assets to be calculated in detail.
The situation becomes more complicated if the surviving spouse is disinherited by will or is limited to their legal share. In that case, the question arises whether the spouse should claim the so-called full legal share or the reduced legal share. The decision can have significant financial consequences and should always be assessed based on the specific financial circumstances.
The full legal share: Simple and quick to calculate
The full legal share is based on the statutory share of the estate, including the flat increase by the so-called accrued-gains quarter. The legal share always amounts to one-half of the statutory share.
For a married couple with children, the calculation is therefore as follows:
- Statutory share of the estate: 1/4
- Increase for accrued gains: + 1/4
- Total statutory share: 1/2
- Legal share = one-half thereof: 1/4 of the estate
The advantage of the full legal share is that no complex calculations of the actual accrued gains are required. The claim can generally be asserted quickly and without significant complications.
Reduced legal share: Legal share plus actual equalization of accrued gains
Alternatively, the surviving spouse may waive the flat increase and instead have the actual accrued gains calculated pursuant to Section 1371(2) of the German Civil Code (BGB).
In this case, the surviving spouse receives the legal share based on the statutory share without the increase, together with a specifically calculated equalization of accrued gains.
The legal share then amounts to only:
- Statutory share of the estate: 1/4
- Legal share thereof: 1/8 of the estate
In return, the surviving spouse is also entitled to the actual equalization of accrued gains. This is calculated based on the difference between the spouses’ initial and final assets. If the deceased spouse accumulated significantly more assets during the marriage than the surviving spouse, the actual equalization payment can be substantial and more than offset the lower legal share.
Practical example: When is the reduced legal share more beneficial?
The following example illustrates how significant the difference between the full and reduced legal share can be:
M dies, leaving his wife, F, and two children. The spouses were subject to the statutory marital property regime of accrued gains. In his will, M named his two children as his sole heirs. F is therefore excluded from succession and can assert only claims to her legal share.
The financial circumstances are as follows:
| Husband M | Wife F | |
|---|---|---|
| Assets at the beginning of the marriage | EUR 100,000 | EUR 100,000 |
| Assets at the time of death | EUR 2,100,000 | EUR 300,000 |
| Accrued gains | EUR 2,000,000 | EUR 200,000 |
During the marriage, M therefore accumulated accrued gains of EUR 2,000,000, while F accumulated only EUR 200,000. The difference amounts to EUR 1,800,000. The actual equalization claim amounts to one-half of this difference, or EUR 900,000.
M’s estate amounts to EUR 2,100,000.
If F chooses the full legal share, the statutory share is first increased by the flat accrued-gains quarter. With two children, she would have a statutory share of one-fourth of the estate. The flat increase resulting from the accrued-gains regime raises this share to one-half. The legal share is then one-half of that amount, i.e., one-fourth of the estate. F can therefore assert a legal-share claim of EUR 525,000.
If F instead chooses the reduced legal share, she receives only the legal share based on the statutory share without the increase. This amounts to one-eighth of the estate, or EUR 262,500. However, she is also entitled to the actual equalization claim of €900,000. Her total claim therefore amounts to EUR 1,162,500.
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The difference is substantial: While the full legal share amounts to only EUR 525,000, F receives a total of EUR 1,162,500 under the reduced legal share, including the actual equalization of accrued gains. In this example, the reduced legal share is therefore EUR 637,500 higher.
When is the reduced legal share more beneficial than the full legal share?
The reduced legal share can be particularly advantageous financially if the deceased spouse accumulated significantly more wealth during the marriage than the surviving spouse. This is often the case with business owners, shareholders, real estate investors, or high-net-worth individuals whose assets have increased substantially during the marriage. In such cases, the flat increase of the statutory share by the so-called accrued-gains quarter may not adequately reflect the actual development of the spouses’ assets.
Particularly in cases involving larger estates, it should therefore always be examined whether the actual accrued gains exceed the flat equalization amount. In many cases, a specific calculation results in significantly higher claims than the full legal share.
However, this requires the spouses’ financial circumstances to be sufficiently documented and traceable. Calculating the accrued gains requires both the assets held at the beginning of the marriage and the assets held at the time of death to be determined. The longer the marriage lasted and the more complex the asset structure, the more demanding this task becomes.
By contrast, the full legal share is often the more pragmatic solution. It offers the advantage of being enforceable quickly and with comparatively little complexity because no specific calculation of accrued gains is required. Particularly when the spouses’ assets have developed at a similar rate or when the necessary documentation for a reliable calculation of accrued gains is unavailable, the full legal share may be the more practical and economically reasonable alternative.
WINHELLER provides comprehensive support in German inheritance law
If a spouse is disinherited while the spouses are subject to the accrued-gains regime, the amount of the legal share should never be accepted without careful review. In many cases, the surviving spouse has a choice between the full legal share and the reduced legal share combined with actual equalization of accrued gains. Which option is more beneficial depends largely on how the spouses’ assets developed during the marriage.
Particularly in cases involving substantial assets, business interests, or real estate holdings, a comparative calculation can result in significant financial differences. A careful analysis of the spouses’ financial circumstances is therefore regularly the first step in determining the economically more favorable option and fully asserting existing claims.
We are happy to assist you with this and the other necessary steps, as well as with any individual questions you may have concerning this complex area of law.
