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Einführung in die Schenkungssteuer
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The key points at a glance
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- Schenkungssteuer fällt bei unentgeltlichen Übertragungen wie Geld, Immobilien, Grundstücken, Wertgegenständen oder einer Eigentumswohnung an.
- The amount of tax depends on:\r\n
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- dem Wert der Schenkung,
- the degree of relationship (tax class I, II, III),
- the applicable tax-free allowances under the Inheritance Tax Act (ErbStG).
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- Tax exemptions can reduce the burden—especially for the family home, but only if it is used in full and by the owner.
- Partial use or discontinuation of use of a family home can lead to the loss of the tax exemption.
- Steuerklasse II (z. B. Geschwister, Nichten/Neffen, Schwiegerkinder) führt oft zu höherer Steuerlast – hier lohnt frühzeitige Planung.
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\r\nAn individual offer for tax advice or solutions can help optimize the tax burden. If you have questions about the legal or tax reasons for a gift, about recognition of or reasons for establishing a family home, or about estate arrangements in the event of an inheritance, we will be happy to assist you. More information, contact options by email, and further pages can be found in our service section.\r\n
Inheritance Tax and Gift Tax Act
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Tax classes and allowances under the ErbStG
\r\nThe Inheritance Tax and Gift Tax Act (ErbStG) forms the legal basis for taxing inheritances and gifts in Germany. It governs how the acquisition of assets—whether due to the death of the testator or by an inter vivos gift—is treated for tax purposes. Decisive for the amount of inheritance tax or gift tax are the value of the acquisition, the degree of relationship between the testator or donor and the heir or donee, and the respective tax class.\r\n\r\nThe ErbStG distinguishes between different tax classes, which are decisive for calculating the tax and for granting allowances. Particularly favorable is tax class I, which includes spouses, registered civil partners, and direct descendants such as children and grandchildren. These groups receive the highest allowances and the lowest tax rates. The closer the familial relationship to the testator or donor, the more favorable the tax conditions for the acquisition.\r\n
Importance of allowances for gifts and inheritances
\r\nAllowances are a central element of the Inheritance Tax and Gift Tax Act. They make it possible to receive a certain amount tax-free—anything above that is subject to tax. The Act provides that gifts and inheritances are taxed differently within certain periods and depending on the degree of relationship. Thus spouses, registered civil partners, and descendants benefit in particular from the ErbStG provisions, while more distant relatives or unrelated persons are less favored.\r\n\r\nOverall, the Inheritance Tax and Gift Tax Act ensures that the acquisition of assets in Germany is taxed transparently and in a traceable manner. Anyone planning a gift or expecting an inheritance should familiarize themselves with the ErbStG rules at an early stage in order to make optimal use of the tax advantages.\r\n
BFH ruling expands structuring scope—Ref. II R 18/23
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Family home in a GbR: BFH allows tax-free gift
\r\nAn owner-occupied family home can be transferred to a spouse exempt from gift tax even if the property is held in a family civil-law partnership (GbR). The Federal Fiscal Court (Bundesfinanzhof) so decided in its judgment of 4 June 2025 (Ref. II R 18/23).\r\n
Tax classes, allowances, and valuation of the family home
\r\nIn the gifting of a family home, the role of the donor is of central importance, as the tax treatment depends decisively on the tax class. Different persons (groups) such as acquirers, heirs, descendants, children, child, parents, partners, and registered civil partners are treated differently. Depending on the degree of relationship, they are assigned to tax classes (tax class I, II, III), which directly affects the amount of allowances and tax rates. Children, child, children, descendants, and parents in particular benefit from special allowances, while partners and registered civil partners also enjoy tax advantages. The amount of gift tax depends on the amounts, the tax rate, and the respective tax class—for example, an allowance of 400,000 euros applies to children and 200,000 euros to grandchildren. In the case of inheritance, after the death of the testator, the estate is distributed according to certain rules, with the time of death being decisive for the tax treatment. Gift tax applies both to lifetime gifts and to inheritances after death, although there are differences in the tax treatment. It is levied on various items of value such as real estate, condominiums, residential property, and other assets.\r\n\r\nTax rules can vary depending on residence and country; in cross-border cases in particular, special provisions apply. The tax office plays an active role in enforcing tax obligations, and taxpayers must declare their gifts and inheritances correctly. There are various reasons why a gift or inheritance is tax-free or taxable—such as the use of the family home, owner-occupation, and compliance with deadlines. When valuing the family home, the roof or attic can also play a role, especially if these areas are used for residential purposes and are therefore part of the tax-privileged family home. Gift tax is generally levied on the value of the gift minus the allowance, with the tax rate varying depending on the tax class. It can make sense to plan gifts during one’s lifetime to save taxes; a skilful division of amounts into several gifts within ten years can bring tax advantages.\r\n\r\nGift tax is a tax levied on money, real estate, and other valuables (such as art or jewelry). In Germany, gift tax is regulated, but international aspects such as residence and country can also play a role. Gift tax and inheritance tax are closely connected, although there are differences in tax treatment. Gift tax is calculated on the basis of the Inheritance Tax and Gift Tax Act (ErbStG), with tax classes and tax rates set out in the law. It is advisable to obtain an overview of the most important rules on gift tax and, if necessary, consult a tax advisor.\r\n
Differences between a gift and an inheritance in the case of the family home
\r\nA family home occupied by the owner can be inherited tax-free under certain conditions. These conditions include, among other things, that the heir uses the family home for their own residential purposes for at least ten years. However, this obligation does not apply in the case of a gift. A tax-exempt gift of the property is then possible if it is the family home used for one’s own residential purposes and the recipient is the spouse or registered partner, according to the business law firm MTR Legal Rechtsanwälte, which, among other things, advises on tax law.\r\n
Family home contributed to a civil-law partnership (GbR)
\r\nThe Federal Fiscal Court has now gone a step further and increased the scope for tax optimization for married couples. It made clear that the tax exemption for an inter vivos transfer of a family home between spouses must also be granted if one spouse contributes the family home to a spouses’ civil-law partnership (GbR) in which the other spouse holds an equal share.\r\n\r\nIn the underlying case, a married couple established a civil-law partnership (GbR) in August 2020. The wife was the sole owner of a developed plot of land that was used by both spouses together for their own residential purposes—i.e., a typical family home. In the same notarized deed, the wife transferred the developed plot of land free of charge into the partnership assets of the GbR, whose partners were she and her husband, each holding 50 percent. The resulting entitlement of the husband to the plot of land was described in the contract as a gratuitous, marriage-related transfer.\r\n
Exemption from gift tax
\r\nThe husband applied for an exemption from gift tax pursuant to § 13(1) no. 4a of the Inheritance Tax and Gift Tax Act (ErbStG). However, the tax office took a different view and assessed gift tax. It considered the requirements for the tax exemption for a family home not to be met, because the property was transferred to the GbR and not to the husband.\r\n\r\nThe husband’s action was successful. The competent Munich Fiscal Court affirmed the requirements for a tax exemption and set the gift tax at zero euros. It argued that the acquisition of jointly held property (Gesamthandseigentum) in a plot of land within the framework of a GbR is also covered by the tax exemption under § 13(1) no. 4a sentence 1 ErbStG.\r\n
Ten years and tax exemption
\r\nA key element of gift tax is the so-called ten-year period. Anyone who makes a gift can make full use of the personal allowance again every ten years. This means that after ten years have elapsed, another gift can be made without gift tax being due on the new amount—provided the value of the gift remains within the applicable allowance. This rule opens up the possibility, particularly for larger assets and real estate, of transferring assets step by step in a tax-optimized manner. When gifting a family home or other real estate, it is important to know the requirements for a tax exemption. For example, owner-occupation of the family home by the recipient can make full tax exemption possible. To find the optimal strategy for gifts and for using the allowances, it is recommended to involve an experienced tax advisor. This allows the benefits of the ten-year period and the statutory options for saving tax to be used as effectively as possible.\r\n
Tax class III and gift tax
\r\nTax class III is the most unfavorable category for gift tax and applies in particular to persons who are not related to the donor, or are only distantly related. Recipients in tax class III include, for example, nephews, nieces, uncles, aunts, children-in-law, as well as friends or other unrelated persons. For this group, the tax-free allowance is set particularly low at EUR 20,000. This means: if the value of the gift exceeds this amount, the recipient must pay gift tax on the value exceeding it.\r\n\r\nThe tax rates in tax class III are significantly higher than in the other tax classes and increase progressively depending on the amount subject to gift tax. Depending on the value of the gift, the tax rate can be up to 50 percent. This means that larger gifts to persons in tax class III in particular are associated with a substantial tax burden.\r\n\r\nAnyone planning a gift to persons in tax class III should therefore carefully review the value of the gift and what taxes might arise. It is advisable to keep the allowances and tax rates in view and, where appropriate, structure the gift in several steps over a longer period in order to minimize the tax effects. Early advice from a tax advisor can help avoid unexpected back taxes or penalties and structure the gift optimally.\r\n
Joint use of the family home in the case of a gift
\r\nThe BFH dismissed the tax office’s appeal against this ruling as unfounded. It first found that, by transferring the property into the partnership assets of the GbR in which the husband holds an interest, the husband had been enriched to the amount of his participation share—half of the property’s value. For tax purposes, according to the BFH, it is not the GbR that is to be regarded as enriched, but rather its partners.\r\n\r\nThe BFH further stated that the tax exemption for a family home is possible if one spouse transfers ownership or co-ownership of a developed property with a dwelling to the other spouse for the latter’s own residential purposes. Even though in the present case the GbR formally became the owner of the property, this requirement was satisfied. This is because the actual purpose—joint use of the property as the family home—remains unaffected. Even if the property is now, under civil law, joint ownership (Gesamthandseigentum) of the GbR, for tax purposes the husband is attributed the partnership interest. In this way, ownership or co-ownership is effectively conferred, the BFH further made clear.\r\n\r\nThe purpose of the tax exemption for the family home is to promote the marital domestic community and not to burden the joint residential purpose unnecessarily for tax purposes. It would not be compatible with the purpose of the law if precisely a structure involving a spouse GbR were to preclude the tax exemption, even though the economic situation is the same as in the case of a direct transfer, according to the BFH.\r\n
Tax planning scope and allowances
\r\nWith this ruling, the BFH made clear that the tax exemption under § 13(1) no. 4a ErbStG can also apply if the family home is not transferred directly between spouses but via a jointly established spouse GbR. In doing so, the BFH opened up further scope for tax optimization.\r\n\r\nTax planning scope can be optimized in particular through the correct use of tax classes, tax rates, and allowances for various groups of persons such as children, descendants, and partners. Early planning of lifetime gifts can yield significant tax advantages.\r\n\r\nMTR Legal attorneys provide comprehensive advice on gift tax and other matters of tax law.\r\n\r\nFeel free to contact us!”
