Definition and Legal Foundations of the Disabled Person’s Will
Das Disabled Person’s Will is a special form of last will and testament under German inheritance law. Its purpose is to transfer the assets of a testator in such a way that a disabled relative is appointed as heir or legatee, without restricting or revoking their entitlement to government social benefits. This form of arrangement aims to protect the inherited assets as effectively as possible from the access of the social welfare agency, while still ensuring sustainable provision for the person with disabilities.
Recognition of the Disabled Person’s Will has been especially shaped by decisions of the Federal Court of Justice (BGH), which considers this structure permissible and compatible with social welfare law.
Legal Framework
Statutory Foundations
The Disabled Person’s Will operates at the intersection of the German Civil Code (BGB), the Social Code (SGB), and case law. Key legal provisions include among others:
- Inheritance Law Provisions: §§ 1922 ff. BGB
- Testament Structuring: §§ 2064 ff. BGB
- Compulsory Portion Law: §§ 2303 ff. BGB
- Social Welfare Law: §§ 90, 93 SGB XII (Utilization of Assets, Transfer of Claim)
Objectives and Practical Relevance
The aim of a Disabled Person’s Will is to secure the quality of life and provision for the disabled heir while simultaneously preserving their government support. Without special testamentary structuring, significant portions of inherited assets from parents or close relatives would first be used to cover social welfare costs before the beneficiary would benefit from the assets themselves.
Typical Arrangements
Appointment as Preliminary and Subsequent Heir
The classic and most common form consists of appointing the person with disabilities as a non-exempt preliminary heir (§§ 2100 ff. BGB), whereby a subsequent heir (often the disabled person’s siblings or other relatives) is also designated in the will. With this structure, the testator’s assets are formally allocated more and more to the disabled person, but are subject to significant legal and practical restrictions on disposition:
- Disposals of certain assets require the consent of the subsequent heir
- The assets remain largely inaccessible to the social welfare agency
Execution of the Will
For further protection, a Execution of the Will (§§ 2197 ff. BGB) is regularly ordered in disabled persons’ wills. The executor manages the share of the estate for the disabled person. As a result:
- Management and use of the inheritance in the interest of the beneficiary are ensured
- Direct claims to payment or utilization by the heir or the social welfare agency are prevented
Establishment of Legacies
As an alternative or supplement, the granting of a legacy (§ 1939 BGB) is possible, for example in the form of a preferential legacy or perpetual legacy, which is aimed at clear and purpose-bound benefits (e.g. pocket money, material benefits).
Social Law Aspects
Crediting of Inheritances under Social Welfare Law
Persons entitled to benefits under SGB XII must generally use their own assets for their living expenses. This also applies to inheritances acquired through a normal inheritance. Here the so-called exempt assetscome into play, which only offer limited protection from state access.
The Disabled Person’s Will addresses this issue through the construction of the preliminary inheritance, execution of the will, and purpose restriction, so that the social welfare agency regularly cannot access the inherited assets, as they are not legally freely available to the beneficiary.
Reclaim and Transfer of Claims
The social welfare agency may, in certain cases, assert the so-called transferred reclaim claim (§ 93 SGB XII) against any beneficiary under the will, if the transaction primarily serves to prevent state access. However, the associated case law (in particular BGH judgments) has generally recognized the permissibility of the disabled person’s will, provided there is no abuse of legal structuring (“abusive arrangement”).
Questions of Compulsory Portion Rights
Compulsory Portion Rights and Supplementary Claims
Close relatives (especially children and spouses) may assert compulsory portion claims (§ 2303 BGB). For persons with disabilities who are regularly appointed as preliminary heirs in a disabled person’s will, it follows that they may only be entitled to compulsory portion claims if the will does not sufficiently provide for them. Frequently, such claims are avoided by appointing the disabled person as a preliminary heir or legatee in the will.
Waiver of Compulsory Portion and Social Welfare Consequences
A contractual waiver of the compulsory portion can have social law consequences in the form of a possible reclaim under § 528 BGB (gift), as government agencies may interpret the waiver as a ‘gift.’ Therefore, structuring as a disabled person’s will is regularly arranged so that an active waiver of the compulsory portion is not necessary.
Current Case Law and Developments
Federal Court of Justice (BGH)
The BGH (including the judgment of October 20, 1993, IV ZR 231/92 and judgment of 15.02.2017, IV ZR 6/16) confirmed that the complete or partial withdrawal of the compulsory portion through appointment as preliminary heir or structuring by execution of the will is permissible, and that the disabled person’s will does not constitute an abuse of rights within the meaning of § 826 BGB or social law provisions.
Social Jurisdiction
Social courts have also regularly ruled that assets shielded through execution of the will, restrictions on disposal, and preliminary inheritance are not considered as assets to be credited under SGB XII in the event of inheritance.
Tax Law Aspects of the Disabled Person’s Will
Inheritances are generally subject to inheritance tax under the Inheritance and Gift Tax Act (ErbStG). The tax exemptions provided by the ErbStG for children or close relatives (§ 16 para. 1 no. 2 ErbStG) also apply to the disabled person’s will. In addition, persons with disabilities receive further personal tax exemptions under certain conditions pursuant to § 13 para. 1 no. 8 ErbStG, provided the inheritance is used exclusively to secure subsistence and care.
Risks, Limitations, and Criticism
Possible Points of Attack
Despite legal acceptance, risks remain:
- Challenge by Disinherited Compulsory Heirs
- Examination for Undue Disadvantage or Abuse
- Amendments in Social Welfare Law (Legal Changes)
Distinction from Abusive Arrangement
If a disabled person’s will is created exclusively to fraudulently obtain social benefits or to unreasonably burden the community of solidarity, it may be deemed ineffective. Case law requires that such testamentary dispositions be directed toward the welfare of the person with disabilities.
Conclusion
The disabled person’s will is a legal structuring instrument that allows relatives to ensure the financial security of disabled descendants or other family members after their own death, without allowing state social welfare agencies to access the estate. It requires precise drafting that takes into account legal, social, and tax regulations. The typical structure combines preliminary inheritance, execution of the will, and the granting of legacies. The highest courts have clarified the basic effectiveness and permissibility of the disabled person’s will.
References
- BGH, Judgment of 20.10.1993, IV ZR 231/92 (“Disabled Person’s Will”)
- Palandt, Commentary on the BGB, §§ 2100 ff., §§ 2197 ff., § 2303
- LPK-SGB XII, § 90, § 93 (Asset Protection in Social Welfare Law)
- Meincke, Inheritance and Gift Tax Act, § 13
Web links
- Federal Ministry of Justice – German Civil Code (BGB)
- <a href="https://www.bundesgerichtshof.de/DE/Entscheidungen/entscheidungennode.html”>Federal Court of Justice – Decisions in Full Text
- <a href="https://www.gesetze-im-internet.de/sgb12/”>Social Code (SGB) – Full Legislative Texts Online
Frequently Asked Questions
What advantages does a disabled person’s will offer compared to ordinary inheritance?
A disabled person’s will offers, in contrast to normal statutory inheritance, the distinct advantage that assets inherited by a person with disabilities are protected from access by the social welfare agency. Due to its specific structure—particularly the arrangement of preliminary and subsequent inheritance as well as the appointment of an executor—the inherited assets, in a legal sense, remain outside the accessible assets of the disabled person and are not counted as current social benefits, such as basic income support or assistance for care. This means that the disabled heir can continue receiving support from the estate, in addition to social welfare benefits, without having to fear the full use or recovery of assets by the authorities. By contrast, under regular statutory succession, the inherited assets would have to be almost entirely used up before social benefits would apply again.
Can the social welfare agency access the inherited assets if a disabled person’s will exists?
If the disabled person’s will is drafted correctly from a legal standpoint, the social welfare agency is fundamentally excluded from direct access to the inherited assets. This is ensured by the arrangement of preliminary and subsequent inheritance in conjunction with the appointment of an executor. The disabled person is often appointed only as preliminary heir, and the executor serves as the actual administrator of the estate. The preliminary heir has no legal authority to dispose of the inheritance and therefore cannot use it to cover social welfare needs. This corresponds to the consistent jurisprudence of the Federal Court of Justice (BGH). The social welfare agency may only consider the compulsory portion, if one exists and has not been effectively excluded, as accessible assets.
What duties does the executor have under a disabled person’s will?
The executor is the central component of a disabled person’s will. Their duty is primarily to administer the inheritance according to the instructions established in the will and to apply it solely for the benefit of the disabled heir, without directly transferring the assets to them. The executor ensures that distributions from the estate are made in such a way that they are not counted toward state benefits (such as benefits in kind, leisure activities, or improvements to the standard of living beyond what social welfare law provides). Additionally, they have comprehensive accounting obligations and may be subject to court supervision in individual cases. The executor’s duties generally end upon the death of the disabled heir or at the time specified in the will.
How are compulsory portion claims handled under a disabled person’s will?
Compulsory portion claims are a central challenge in the context of a disabled person’s will. Although the compulsory portion cannot be excluded by law, careful arrangements in the will are often made to minimize it—for example, by granting legacies to other heirs or by distributing the estate in a targeted manner. Persons entitled to the compulsory portion (under § 2303 BGB, typically children or spouses) always have a right to a monetary amount equivalent to their compulsory share, regardless of the testator’s wishes. In the case of disabled children, there is a risk that the social welfare agency will assert the compulsory share claim. Therefore, a legally sound structuring of the disabled person’s will should explicitly address this issue, for example, through suitable arrangements to minimize the compulsory share burden or by instructing the heir to pay out the compulsory share.
What formal requirements must be observed when creating a disabled person’s will?
The disabled person’s will must formally meet the same requirements as any other handwritten will pursuant to § 2247 BGB: it must be written and signed by hand or notarized. However, because the substantive and tax requirements can be very complex, it is always advisable, in order to ensure legal certainty, to have it notarized and prepared with the help of an expert lawyer or notary specializing in inheritance law. Important elements include the clear designation of preliminary and subsequent heirs, precise rules regarding execution of the will, and detailed instructions for the management and use of the inheritance. Unclear or erroneous testamentary provisions can jeopardize the intended protection of the disabled heir and the estate.
What role does subsequent inheritance play in the disabled person’s will?
The arrangement of subsequent inheritance plays a key role in the disabled person’s will. The disabled heir is appointed as preliminary heir—entitled only to the use of the estate, but with no broad powers to dispose of the assets themselves. Only after their death, or upon the occurrence of a specified event, does the subsequent heir—usually siblings or other relatives—become the full heir. This arrangement prevents the social welfare office from viewing the inheritance as accessible assets of the disabled person. However, the subsequent heir must be clearly designated in the will to avoid future disputes or uncertainty regarding succession.
Can a disabled person’s will be amended or revoked afterwards?
A will, including a disabled person’s will, can be amended or revoked at any time during the testator’s lifetime, provided that the testator has testamentary freedom and capacity (§ 2253 BGB). It is possible to draft a new will, to destroy the previous will, or to expressly revoke it by a later will. After the testator’s death, the provisions made in the will are binding; subsequent amendments are then excluded. Due to the complexity and special protective regulations in question, it is advisable to seek legal and notarial assistance for any changes.
