In its decision of 13 May 2026 (Az. IV ZB 7/25, case no. IV ZB 7/25), the Bundesgerichtshof (BGH, Federal Court of Justice) had to consider whether a surviving spouse’s statutory right of inheritance remains excluded under § 1933 sentence 1 BGB (German Civil Code) even if previously initiated divorce proceedings had been stayed for an exceptionally long period—18 years in the case at hand.
The appellant had been married to the subsequent deceased since 28 July 1988. In October 2000, she filed a petition for divorce with the Amtsgericht Potsdam (Potsdam Local Court). At the same time, she applied for a pension rights adjustment and equalisation of accrued gains.
Deceased consented to petition for divorce
At an oral hearing in April 2003, the wife pursued her petition for divorce. The deceased personally consented to it. At that time, he was not yet represented by a lawyer. His legal representative did not appear until later in the hearing. The spouses were then heard, and the ancillary matters of pension rights adjustment and equalisation of accrued gains were discussed in particular. However, the settlement discussions conducted in this context were unsuccessful. As further clarification was required, no further applications were made, the date set for delivery of the decision was cancelled, and the proceedings were stayed.
Divorce proceedings remained dormant for 18 years
The divorce proceedings were not pursued for the following 18 years. It was not until a written submission dated 20 December 2021 that the wife declared that she was withdrawing her petition for divorce. However, this submission was not served on the deceased until after his death. The deceased died on 20 January 2022 without leaving a testamentary disposition. In addition to his still legally married wife, he was survived by a daughter who was not an issue of the marriage.
Wife’s application for a certificate of inheritance rejected
Following his death, the wife applied for a joint certificate of inheritance identifying her and the deceased’s biological daughter as heirs, each with a 50% share. The Nachlassgericht (probate court)—the Amtsgericht Greifswald (Greifswald Local Court)—rejected the application (Az. 9 VI 339/22, case no. 9 VI 339/22). Her appeal to the Oberlandesgericht Rostock (Rostock Higher Regional Court) was also unsuccessful (Az. 3 W 26/24, case no. 3 W 26/24). The wife then lodged an appeal on a point of law with the Bundesgerichtshof.
Bundesgerichtshof dismisses appeal on a point of law
The Bundesgerichtshof dismissed the appeal on a point of law. It thereby upheld the decisions of the lower courts and found that the surviving wife’s statutory right of inheritance was excluded under § 1933 sentence 1 BGB.
The daughter who was not an issue of the marriage is therefore the sole heir.
Requirements for divorce were met
Under this provision, a spouse’s statutory right of inheritance is excluded if, at the time of the deceased’s death, the requirements for divorce were met and the deceased had petitioned for divorce or consented to it.
The BGH considered these requirements to have been met. In particular, the deceased had validly consented to the petition for divorce in 2003. The wife’s subsequent withdrawal of the petition for divorce could no longer terminate the pendency of the divorce proceedings because, once the oral hearing on the merits had begun, the respondent’s consent was required.
Stay of divorce proceedings does not end exclusion of inheritance rights
It was also crucial that the 18-year stay of the divorce proceedings resulted neither in an implied withdrawal of the petition for divorce nor in the cessation of the exclusion of inheritance rights.
Reasons for the decision
The Bundesgerichtshof first considered whether the deceased’s consent to the petition for divorce was valid. In the Senate’s view, the consent had been validly declared for the court record pursuant to § 630(2) sentence 2 ZPO a. F. (former version of the German Code of Civil Procedure). The deceased’s personal consent was not subject to mandatory legal representation.
The fact that the deceased’s legal representative did not participate in the hearing until after he had personally declared his consent did not preclude a finding that oral argument on the merits had taken place. By subsequently discussing the ancillary matters of pension rights adjustment and equalisation of accrued gains, the legal representative had also addressed the substance of the petition for divorce. The ancillary matters were closely linked to the divorce. In particular, equalisation of accrued gains could not be discussed without addressing the substance of the petition for divorce.
Withdrawal of petition for divorce required deceased’s consent
The oral hearing had therefore already begun. Consequently, under § 113(1) sentence 2 FamFG (German Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction) in conjunction with § 269(1) ZPO (German Code of Civil Procedure), any subsequent withdrawal of the petition for divorce was possible only with the deceased’s consent. No such consent had been given. Nor could consent be deemed to have been given under § 269(2) sentence 4 ZPO because the declaration of withdrawal had not been served until after the deceased’s death.
The Amtsgericht had served the declaration of withdrawal without the notice concerning the time limit for objection required under § 269(2) sentence 4 ZPO. For this reason as well, the deceased’s consent to the withdrawal of the petition could not be deemed to have been given. The divorce proceedings therefore remained pending when the succession occurred.
However, the central issue in the decision was whether the exceptionally long stay of the divorce proceedings could affect the exclusion of inheritance rights.
No implied withdrawal of the petition
The BGH answered this question in the negative. The mere passage of time could not support the conclusion that the petition for divorce had been implicitly withdrawn. Such a withdrawal required a clear and unequivocal intention to withdraw. The parties’ mere inactivity was insufficient. In the specific case, a written statement made by the wife in 2004, in which she had expressed her desire to obtain a divorce as quickly as possible, also militated against any such intention to withdraw.
The Bundesgerichtshof also rejected a purposive restriction of § 1933 sentence 1 BGB. There was no unintended gap in the legislation. The wording of the statute covered all cases in which the deceased died while divorce proceedings were pending and the other statutory requirements were met. The law did not provide for any time limit on the exclusion of inheritance rights where proceedings had been stayed for a prolonged period.
The BGH also emphasised that divorce proceedings could be stayed for various reasons. These could include, for example:
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financial considerations,
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health problems, or
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consideration for minor children
The standstill in the proceedings did not therefore necessarily indicate that the intention to divorce had ceased to exist.
Spouses could have withdrawn the petition for divorce
Finally, the Senate pointed to the considerable legal uncertainty that would arise if the exclusion of inheritance rights could cease to have effect after a certain period not specified by law. Instead, the spouses themselves could influence the consequences under succession law by validly withdrawing the petition or making a testamentary disposition.
Moreover, because the spouses had already been living separately for far more than three years when the succession occurred, the requirements for divorce were irrebuttably presumed to have been met under § 1566(2) BGB.
Significance of the decision
The decision makes clear that a prolonged standstill in divorce proceedings does not automatically revive a spouse’s statutory right of inheritance. Even an 18-year stay generally has no effect on the exclusion of inheritance rights under § 1933 sentence 1 BGB, provided that the statutory requirements continue to be met.
For succession law practice, this means that spouses cannot eliminate the inheritance consequences of initiated divorce proceedings through mere inactivity. Anyone who wishes to preserve statutory succession in favour of their spouse despite pending divorce proceedings must take timely steps to validly terminate the proceedings or make an appropriate testamentary disposition.
Conversely, this also applies to a deceased who specifically wishes to prevent the separated spouse from participating in the estate or to make different arrangements: they should not rely on the mere standstill of divorce proceedings.
The BGH thus provides clarity regarding the inheritance consequences of divorce proceedings that have been stayed for many years while also strengthening legal certainty in the application of § 1933 BGB.
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