The reservation of the right of residence can still affect the compulsory portion supplement claim in the gift of a property even after more than ten years. This is demonstrated by a ruling of the OLG Munich.
Gifts are an excellent means to bypass inheritance tax or also to reduce compulsory portion claims. However, it must be considered that the compulsory portion claim, e.g., from the deceased’s children, also relates to items that the deceased gave away in the last ten years before his death, explains the commercial law firm MTR Legal. This so-called compulsory portion supplement claim can even exist if the gift was made more than ten years ago, as a ruling of the OLG Munich from July 8, 2022, shows (Az. 33 U 5525/21).
In this case, the deceased had given a residential house to one of his children and had reserved the sole right of residence in all the rooms of the house. The gift was made more than ten years ago when the father died. Nevertheless, a son claimed that the property must be taken into account in his compulsory portion supplement claim. Since the father had reserved the sole right of residence, the ten-year period did not apply here, he argued.
He was successful with his lawsuit before the OLG Munich. A person entitled to a compulsory portion is also entitled to his compulsory portion in gifts that the deceased made in the last ten years before his death. In the course of the so-called melting away, this value decreases by ten percent each year and finally completely falls out of the compulsory portion supplement after ten years, according to the OLG. According to the case law of the BGH, however, this does not apply if the deceased retained the full usufruct of the property.
A granted right of residence is not necessarily to be equated with a reservation of usufruct. However, the father here reserved the exclusive use of the entire living space, so that the difference is so small that the reservation of the right of residence is to be equated with the reserved usufruct, explained the OLG. Therefore, the plaintiff has a compulsory portion supplement claim.
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