If the marriage has produced children, the spouse inherits half of the entire estate. The other half goes to the joint descendants in equal shares. If the couple had no children, the spouse inherits three quarters or, if there are no other legal heirs, even the entire estate.
If this is not desired, the surviving spouse can be made a compulsory heir by drawing up a will. This reduces the share of the estate to which he or she is entitled by half.
The following requirements must be met and measures taken to ensure that a spouse receives neither the statutory inheritance share nor the compulsory portion after the divorce has been initiated:
- The divorce must be filed with the court. The divorce can be filed at the joint request of both spouses or – after the statutory two-year separation period has expired – unilaterally by one spouse. The same applies to proceedings for the dissolution of a registered partnership. If this requirement is met, the spouses lose their mutual entitlement to a compulsory portion.
- By means of a testamentary disposition (will as a public deed or handwritten), the spouse who is no longer to receive his or her statutory share of the estate is to be excluded from the statutory right of inheritance. The will must therefore state that the spouse is no longer a legal heir or is excluded as such. Without the testamentary disposition, the other spouse is still entitled to his or her statutory inheritance share.
If the spouses do not wish to divorce, but at the same time do not wish to have mutual inheritance rights, the only option is to conclude an inheritance contract. In this contract, the spouses can waive their inheritance rights to each other. When concluding the inheritance contract, it is important to ensure that it is always publicly notarised by a notary, otherwise the inheritance contract is not formally valid.
Our lawyers and notary will be happy to answer any questions or concerns you may have in the area of inheritance law.