Definition and Origin of Accretion
Die Accretion is a technical term in German civil law that describes the process by which a share in a joint legal position to which a participant is entitled increases for the remaining participants due to the lapse (e.g. by renunciation, death, or lapse of other entitled persons). The term is mainly used in inheritance law, but also in property law, company law, and other legal fields. The term accretion is derived from the Latin word “accrescere,” which means “to grow” or “to increase.”
Accretion in Inheritance Law
Legal Basis
In inheritance law, accretion regularly occurs in communities of heirs or bequests when one of several heirs or legatees ceases to exist, and no substitute person has been appointed. The relevant provisions are § 2094 BGB (accretion when an appointed person ceases to exist) and § 2095 BGB (accretion in the event of the lapse of a legatee). The regulations are intended to simplify the distribution of the estate and avoid settlement problems.
Practical Applications
1. Inheritance Share: If a co-heir ceases to exist (e.g. by renouncing the inheritance or dying before the succession) and no substitute heir is appointed, his share increases the shares of the other heirs in proportion to their quotas (§ 2094 para. 1 sentence 1 BGB).2. Bequests: If this situation concerns multiple legatees, § 2095 BGB regulates the increase of the bequest shares for the remaining legatees.
Example:
If A and B are each appointed as heirs to ½ and B renounces the inheritance, B’s share passes to A, who thus becomes the sole heir.
Exceptions and Limitations
Accretion does not occur if the testamentary disposition appoints a substitute (substitute heir) or explicitly stipulates another arrangement (§ 2094 para. 1 sentence 2 BGB). In addition, accretion can be excluded by special testamentary arrangements.
Accretion in Property Law
Acquisition of Ownership by Accession
In property law, accretion refers to the addition of objects to a principal object, particularly under § 947 BGB (combination of movable property) and § 948 BGB (commingling). If a movable item is combined with another so that it becomes an essential part, the owner of the principal item acquires ownership of the combination.
Acquisition of Ownership by Commingling
In the case of an inseparable commingling of several movables belonging to different owners, co-ownership arises according to shares. If an owner leaves, his share accrues to the other participants (accretion).
Accretion in Company Law
In company law, accretion applies when a shareholder leaves a partnership under joint ownership (e.g. civil law partnership – GbR) and there is no other disposition regarding his share. As a rule, the share increases the assets of the remaining shareholders unless different arrangements have been made in the partnership agreement.
Significance of Accretion in Other Legal Fields
Accretion also applies to special types of communities, such as foundations or estate administrations, when a beneficiary ceases to exist and other beneficiaries profit by way of increase.
Limits and Significance of Accretion in German Law
Accretion is a significant institution ensuring legal certainty, distribution and settlement of estates, and continuity in joint legal relationships. It serves as a default rule in the absence of replacement or succession provisions. However, accretion can be excluded or modified by will, partnership agreement, or specific statutes.
References and Further Reading
- German Civil Code (BGB), §§ 2094, 2095, 947, 948
- Maurer, Inheritance Law, 7th ed.
- MüKoBGB, Commentary on the BGB
- Palandt, German Civil Code
- Schwab, Handbook of Inheritance Law
Summary: Accretion is a central legal institution that regulates the increase of rights and shares in assets when a participant ceases to exist. It applies in inheritance, property, and company law and serves to create legal certainty and enable efficient administration of joint legal positions. Due to its dispositive nature, it can be contractually or testamentarily excluded or modified.
Frequently Asked Questions
What are the legal consequences of accretion in inheritance law?
In inheritance law, accretion means that the share of an entitled person who ceases to exist (e.g. a deceased co-heir), as determined by testamentary disposition (such as a joint will or inheritance contract), automatically passes to the other beneficiaries of this disposition. Legally, accretion is specifically stipulated in § 2094 BGB. Accretion prevents the emergence of a vacant inheritance share for which no substitute (substitute heir) was appointed in the will. The remaining co-heirs move up proportionally to their originally fixed shares in accordance with their inheritance quotas. In contrast, in the case of intestate succession, accretion does not apply; standard statutory regulations on increase and succession within the community of heirs then take effect. Accretion may be particularly relevant when several persons are jointly appointed as heirs of a particular estate or bequest and one such heir ceases to exist (e.g. through predecease, renunciation, or unworthiness to inherit). Generally, the remaining heirs do not need to make a separate application; their shares are automatically adjusted unless otherwise provided by testamentary disposition.
When does accretion not occur?
Accretion does not occur if the testator has explicitly made a different arrangement in the will, for example by appointing a substitute heir (§ 2096 BGB) in the event of a previously appointed heir lapsing. Likewise, if a division order is made or individual assets are assigned to specific persons, the statutory accretion does not occur automatically. Accretion is also excluded if appointed heirs receive individual estate administration or if clear individual shares are assigned. If intestate succession applies, i.e. there is no will or inheritance contract, accretion does not apply either; distribution of the estate then follows statutory rules on inheritance and succession by descendants. Special grounds for exclusion can also arise in joint wills or spousal wills if specific contrary arrangements for accretion are stipulated.
Do the remaining heirs need to act after accretion occurs?
As a rule, after accretion occurs, no special legal actions are required by the remaining heirs, as their inheritance shares increase by operation of law. The change in quota is automatic; this is particularly taken into account when a certificate of inheritance is issued by the probate court. Nevertheless, in practice it may be necessary for the remaining heirs, within the estate settlement (for example in land register corrections or account closures), to provide evidence of the increase. In complicated situations or in case of disagreement between heirs, legal advice or a declaratory decision may be required. The probate court checks the requirements for accretion ex officio when issuing certificates of inheritance.
How does accretion relate to substitute heirs?
If a substitute heir is appointed with regard to a specific inheritance share in accordance with § 2096 BGB, the appointment of the substitute heir always takes precedence over accretion. This means: If an original heir lapses, the inheritance share does not accrue to the other co-heirs; rather, the substitute heir takes their place. The testator can determine a substitute heir explicitly or implicitly, for example using formulations such as “instead of…” or “alternatively” in the will. Only if no substitute heir is appointed or the appointment also lapses does accretion apply as a statutory fallback rule.
Is there anything special to note about accretion and bequests?
Yes, the accretion regulations apply not only to appointed heirs but also to bequests benefiting multiple persons. Where several legatees are jointly considered and no substitute heir or substitute legatee is appointed, the share of the departing legatee accrues to the remaining legatees in the same proportion. This precondition requires that the bequest to several persons was made jointly and that no division order by fractional shares or other special provision exists. However, particular inheritance law circumstances may apply in the case of community legacies, where interpretation of the will according to individual circumstances is decisive.
How do accretion and increase differ in company law?
Although the terms are sometimes used synonymously in legal language, accretion in inheritance law and increase in company law are distinct phenomena. In company law, for example for a GbR or BGB partnership, “increase” refers to the automatic assumption of the business interest of a withdrawing partner by the remaining partners. In inheritance law, on the other hand, “accretion” is a specific mechanism regulating the increase of a lapsed inheritance share to the remaining testamentary beneficiaries. An important difference: company law increase is based on specific rules of the partnership agreement and the BGB (§ 738 BGB), while accretion is clearly bound to the testamentary disposition and the absence of a substitute heir.
Can a testator exclude or modify accretion in the will?
In principle, the testator is free to exclude or modify the statutory rule of accretion in the will by their own provision. This can be done, for example, by explicit division orders, assignment of individual shares or items, appointment of substitute heirs, or stipulations for distribution if individual heirs cease to exist. Such arrangements always take precedence over the statutory accretion, as long as they are legally effective and clear. Individual arrangements for preliminary or subsequent heirs can also replace accretion with alternative rules. The interpretation of the will and the validity of such provisions is, in case of doubt, the responsibility of the probate court.
