Inheritance law chaos: Higher Regional Court stops joint will!

Inheritance law chaos: Higher Regional Court stops joint will!

A recent ruling by the Hamm Higher Regional Court has far-reaching consequences for the drafting of wills in patchwork families. On November 27, 2012, the court decided in the case (ref.: I-15 W 134/12) that a joint will may no longer be changed after the death of a spouse. This decision was made after a second wife secretly altered her late husband's will to name her own daughter as heir. The court declared this change invalid and found that the original heirs from the man's first marriage were still valid. The daughter from the first marriage was entitled to her compulsory share and was awarded it.

As the Hamm Higher Regional Court stated, Section 2271 of the German Civil Code (BGB) states that a joint will is binding after the first death unless options for change have been agreed. In this case, the stepdaughter, who applied for a sole inheritance certificate, had her request confirmed. This makes it clear how important it is to make clear regulations in patchwork families in order to avoid possible inheritance disputes. Lawyers and experts therefore recommend that wills be designed to be legally precise and unambiguous, especially when it comes to powers of change and taking all family constellations into account.

Importance of clear regulations

In a blended family, it is essential to make a death disposition to protect one's children, especially for the parent who dies first. In the statutory matrimonial property regime, in the first case of inheritance, the surviving spouse inherits half of the assets, while the children each receive a quarter (§§ 1924, 1931 para. 1, 3, 1371 para. 1 BGB). After the husband's death, his wife and biological children inherit; After the wife's death, however, only her descendants, which can potentially lead to the loss of 50 percent of the assets for children from the first marriage.

In order to protect your own children, it would be possible to name them as sole heirs. However, this measure could disinherit the surviving spouse and lead to claims for a compulsory portion (§ 2303 BGB). A possible dispute can therefore be inevitable. “A mutual appointment of exempt heirs is recommended in order to enable both partners to use the assets and to protect the surviving spouse,” say experts. In the event of death, the surviving spouse can be named as the pre-inheritance, while the child from the first marriage takes over the post-inheritance.

Preventive measures

Some other recommendations for drafting wills in blended families include introducing a remarriage clause to protect the estate in the event of a potential remarriage of the surviving partner, as well as taking usufruct legacies into account. These could give the surviving spouse a stronger position in the inheritance, while their own children are registered as full heirs. The waiver of claims to a compulsory portion should also be included in wills in order to prevent later misunderstandings.

The recent ruling by the Higher Regional Court urgently underlines the complexity and challenges associated with drafting wills in patchwork families. Thoughtful planning is the first step in avoiding legal disputes and emotional conflicts in the event of an inheritance.