Introduction to the topic of donation offsetting against the compulsory portion
Gifts made by the future testator to a potential compulsory heir repeatedly gain significant practical relevance in German inheritance law. It is not uncommon for the question to arise as to whether, and in what manner, a gift made during the lifetime—particularly by way of donation—should be taken into account in the subsequent calculation of the compulsory portion. The Higher Regional Court of Koblenz addressed key aspects of this subject matter in a decision from 2006 (Ref. 12 U 1151/04) and developed important guidelines on this issue.
Principles for the offsetting of gifts
Statutory requirements
According to the statutory structure of the German Civil Code (§ 2315 BGB), an offsetting of a donation against the compulsory portion is only possible if, at the time of making the gift, the testator made a corresponding declaration. It is particularly decisive that this declaration of offsetting was clearly and unambiguously communicated to the recipient at the time of transfer. The requirements are strict; mere presumption or the subjective intention of the testator is insufficient.
Form and content of the offsetting declaration
Neither law nor case law requires a specific form for the declaration of offsetting. Nevertheless, the testator’s statement must be sufficiently definite in content so that the recipient is aware of the extent and scope of the offsetting. Any statements made are interpreted according to the principles applicable to legal declarations of intent. All the circumstances of the individual case must be taken into account.
Current judicial assessment based on the Higher Regional Court Koblenz
Facts of the case and proceedings
In the underlying case, a testator had given one of his children a benefit during his lifetime. Following the inheritance case, there was a discussion as to whether this benefit should be taken into account in the calculation of the compulsory portion. The requirements for the offsetting declaration were at the center of the judicial review.
Reasons for the decision
The Higher Regional Court of Koblenz determined that the mere mention that a gift should ‘be offset against future inheritance or compulsory portion claims’ does not necessarily result in the offsetting effect. What matters is that the testator clearly and unequivocally informs the recipient of the intention to offset at the time of the donation. A tacit intention or one inferred from the overall circumstances is not sufficient. The court emphasized that the aim of the legislative provision is to provide the beneficiary with planning certainty and to exclude disputes about subsequent interpretations.
Implications for practice and structuring
Distinction from equalization in the context of matrimonial property regime equalization
It is important to distinguish the offsetting under § 2315 BGB from the so-called equalization pursuant to § 2050 et seq. BGB, which concerns the equal treatment of all descendants as statutory heirs. In contrast to offsetting, for the obligation to equalize, the purpose of the gift is also decisive—namely, whether it was intended to count toward the inheritance share.
Implications for subsequent disputes
The judgment illustrates the potential disputes that can arise from unclearly formulated benefits or the absence of offsetting declarations. Especially in entrepreneurial environments and among wealthy individuals, ambiguities can lead to complicated and protracted disputes.
Significance for testamentary planning and estate structuring
Legally secure structuring of gifts
Particularly in the context of comprehensive succession planning, it is advisable to clearly regulate the question of offsetting and to unambiguously document such arrangements when transferring significant assets to potential compulsory heirs. This helps to avoid later uncertainties in the calculation of the compulsory portion and to minimize potential conflicts within the community of heirs.
Dispute prevention in an international context
For internationally oriented asset holders, the legal situation is further characterized by the fact that different countries have divergent rules regarding the consideration of gifts in compulsory portion law. Careful planning and clear written documentation are often even more crucial in such cases.
Conclusion and contact
The careful structuring of donation offsets in connection with compulsory portion claims is of considerable legal significance and, in each case, requires a differentiated legal assessment. The numerous legal intricacies and the complexity of the subject matter can have a significant impact on the value of the estate and the claims of those involved. For further questions in this context, the team at MTR Legal Rechtsanwalt is available as a competent contact throughout Germany and internationally.
