Supplementary Compulsory Portion Claims: Effects of Ante-Natal Gifts by the Deceased
In its decision of May 23, 2012 (Case No. IV ZR 250/11, published at https://urteile.news), the Federal Court of Justice (BGH) clarified the scope of the supplementary compulsory portion claim pursuant to Section 2325 BGB in a remarkable way. The focus was on the question of whether gifts made by the deceased even before the birth of a later compulsory portion beneficiary could be taken into account in the calculation of the supplementary compulsory portion claim.
Basic Principles of the Law on Supplementary Compulsory Portions
The compulsory portion claim serves as the minimum share for close relatives in an estate. To prevent circumvention of this claim by inter vivos gifts from the deceased, Section 2325 BGB establishes the supplementary compulsory portion claim. Under this provision, gifts made within certain periods are fictitiously added to the estate. The economic aim is to protect the statutory minimum inheritance share of compulsory portion beneficiaries from being undermined.
Legal Framework for Supplementary Compulsory Portions in the Case of Ante-Natal Gifts
A central point of discussion in connection with the supplementary compulsory portion claim has been whether gifts made by the deceased at a time when the later compulsory portion beneficiary was not yet born are also covered. In the case decided, the deceased had transferred assets to one of his children several years before the birth of another child. After the parent’s death, the younger child sought to have these ante-natal gifts included in the calculation of their compulsory portion claims.
The Decision of the Federal Court of Justice
In its decision, the Federal Court of Justice clarified: For the supplementary compulsory portion claim, it is not decisive that the gift was made after the birth of the descendant. Rather, what counts is the claimant’s legal status as a person entitled to a compulsory portion at the time of inheritance and compliance with the statutory periods, in particular the ten-year period under Section 2325 (3) BGB. If these conditions are met, gifts made before the child was born must also be taken into account as part of the supplementary compulsory portion.
Systematic Classification and Practical Implications
Equal Treatment of All Compulsory Portion Beneficiaries
The decision upholds the principle of equal treatment. The Federal Court of Justice emphasizes that a teleological reduction of Section 2325 BGB, which would exclude ante-natal gifts, is not envisaged. This interpretation also protects those descendants who, due to their younger age, would otherwise be disadvantaged, since otherwise asset transfers before their birth would not grant them a compulsory portion claim.
Implications for Estate Structuring and Succession Planning
For succession planning, the decision increases the requirements for a robust and sustainable strategy. Particularly in cases of substantial family assets, it must now be considered that gifts to descendants who were not yet born at the time of transfer can become relevant retroactively. This may have significant effects on the compulsory shares of all parties involved and consequently lead to a de facto extension of the supplementary compulsory portion claim.
Significance for Other Issues Relating to Compulsory Portion Rights
The determination that the existence of a compulsory portion right at the time of the gift is not a prerequisite for a supplementary compulsory portion claim provides courts with a clear framework for interpretation. From this, future decisions may develop with respect to the consideration of other forms of gifts, particularly given the often complex family situations and succession stages of compulsory portion claims.
Summary and Legal Outlook
The now highest court confirmation that ante-natal gifts are included in the supplementary compulsory portion claim strengthens the legislator’s intention to provide comprehensive protection for compulsory portion beneficiaries. At the same time, requirements for transparent documentation and traceability of inter vivos asset dispositions are increased. Especially for estate planning with international aspects and complex asset structures, careful legal review of the individual case is recommended.
For further information and for individual legal advice on compulsory portion rights and supplementary claims, the lawyers at MTR Legal Rechtsanwälte are available nationwide and internationally.
