Compulsory Portion: Entitlement, Amount
and Enforcement.
Being disinherited does not mean going away empty-handed. This guide explains who is entitled to the compulsory portion, how the claim is calculated, what role gifts play – and which deadlines you must not miss under any circumstances. As a specialist lawyer for inheritance law, we represent both beneficiaries and heirs.
Who is entitled to the compulsory portion?
Anyone disinherited by will or inheritance contract does not automatically go away empty-handed. The law secures the closest relatives a minimum share of the estate: the Compulsory portion (§ 2303 BGB). Entitled to the compulsory portion are the descendants (children, or grandchildren in their place), the spouse or registered civil partner – and only if there are no descendants, also the parents of the deceased. Siblings never have a claim to a compulsory portion.
How much is the compulsory portion?
The compulsory portion amounts to half of the statutory share of the estate. Example: A widower leaves two children and disinherits one. The statutory share of each child would be ½ – the compulsory portion of the disinherited child is therefore ¼ of the value of the estate. Important: the compulsory portion is a pure monetary claim against the heirs, due immediately upon inheritance. The beneficiary does not become a co-heir and cannot demand specific items – but the heirs must pay them out, if necessary by selling estate assets.
Disclosure, valuation, limitation period
Anyone asserting their compulsory portion usually does not know the estate. That is why § 2314 BGB grants a comprehensive right to information: the heirs must provide an orderly inventory of the estate – on request as a notarial inventory of the estate, in which the notary determines the assets themselves. In addition, there is a right to valuation, for example through an expert appraisal for real estate. The claim to the compulsory portion becomes time-barred after three years from the end of the year in which the beneficiary became aware of the death and the disinheritance – anyone who waits too long loses everything.
Supplementary compulsory portion: When gifts were made during the deceased's lifetime
Gifts made by the deceased in the last ten years before their death are added proportionally to the estate for the calculation of the compulsory portion (claim to a supplementary compulsory portion, § 2325 BGB). A tapering model applies: in the first year before the death, the gift counts in full, after which the amount taken into account decreases by one tenth each year. Two important exceptions: for gifts to the spouse the ten-year period only begins upon dissolution of the marriage – and if the donor reserved a usufruct or a right of residence, according to case law the period frequently does not start running at all. Supposedly clever transfers 'to circumvent the compulsory portion' regularly fail as a result.
For testators: managing and avoiding the compulsory portion
- Waiver of compulsory portion: The most effective route – the beneficiary waives their right by notarial deed (§ 2346 BGB), usually in exchange for a settlement during their lifetime.
- Early transfers: Gifts are only effective with sufficient lead time and correct structuring (caution with reserved usufruct).
- Compulsory portion penalty clauses in a Berlin Will remove children's incentive to claim their compulsory portion upon the first death.
- Deprivation of the compulsory portion (§ 2333 BGB) is only possible in narrow exceptional cases – for example, serious criminal offences against the deceased – and must be justified in the will.
Briefly answered
Can children be completely disinherited?
Excluding them from the line of succession, yes – excluding them from the compulsory portion, practically not. Disinherited children retain their monetary claim amounting to half of the statutory share of the estate. Complete deprivation of the compulsory portion is only possible in the narrow cases of § 2333 BGB, for example in the case of serious criminal offences against the deceased.
How do I find out what belongs to the estate?
Via the right to information under § 2314 BGB: the heirs must provide a complete inventory of the estate. At your request, a notary must draw it up – who then investigates matters themselves, including gifts made during the deceased's lifetime. For real estate, you can additionally request a valuation report.
Do gifts to others count towards the compulsory portion?
Gifts made in the last ten years are added proportionally for the supplementary compulsory portion – the amount taken into account decreases by one tenth each year. In the case of gifts to the spouse and where a usufruct or right of residence has been reserved, the period often does not run at all: in that case the gift still counts in full even after decades.
When does the claim to the compulsory portion become time-barred?
After three years from the end of the year in which you became aware of the death and of the disinheritance – regardless of this, at the latest 30 years after the death. The period also runs while negotiations regarding the estate are still ongoing; it can be suspended by negotiations or must be safeguarded by filing a claim.
Does the compulsory portion have to be paid immediately?
The claim becomes due immediately upon inheritance. If the heirs are unable to pay without, for example, selling the family home, a court-ordered deferral (§ 2331a BGB) may be considered in cases of hardship – however, the requirements for this are stringent. A mutually agreed instalment or settlement arrangement is generally the more sensible option.
Enforcing – or defending against – a claim to a compulsory portion of the estate.
We review your case, calculate the amount of the claim, and handle the dispute on your behalf – both out of court and in court proceedings.