Definition and Basics of Hereditary Diseases
The term hereditary disease is medically defined as an illness caused by a change in the genetic material (mutation or genetic defect) and can be passed from one generation to the next. In a legal context, the term is particularly significant in matters of family law, inheritance law, social law, labor law, and medical law. The following article provides a comprehensive legal analysis of hereditary diseases, examines the legal implications, protective mechanisms, prohibitions of discrimination, and touches on relevant laws in German and European law.
Relevance in Family Law
Precaution and Advice
In family law, hereditary diseases play a central role in issues of genetic counseling, family planning, and the protection of offspring. According to the Genetic Diagnostics Act (GenDG), genetic testing before and during pregnancy, especially for detecting hereditary diseases, is only permitted under strict legal regulations. Pregnant women must be offered non-directive counseling so they can make an informed and autonomous decision.
Relationship to Marriage and Registered Partnerships
Knowledge of hereditary diseases can have an impact on the decision to enter a marriage or registered partnership in advance. However, there is no legal obligation to disclose or inquire about genetic risks.
Hereditary Diseases in Inheritance Law
Testamentary Freedom and Ban on Discrimination
In German inheritance law, testamentary freedom basically applies (§ 1937 BGB). This means that hereditary diseases do not have to play a role when drafting a will. The testator is free in their decision, even if a potential heir suffers from a hereditary disease or is at risk of one.
However, it should be noted that under Article 3 of the Basic Law (GG), discrimination on the basis of disability—including hereditary diseases as a possible cause—is prohibited. Wills that are discriminatory solely because of a hereditary disease may be contestable.
Incapacity to Inherit and Compulsory Portion
A hereditary disease does not constitute grounds for incapacity to inherit nor for deprivation of the compulsory portion. The only relevant reasons are those listed in § 2333 BGB. The diagnosis or concealment of a hereditary disease is not among them.
Medical Law Aspects and the Genetic Diagnostics Act
Regulations on the Handling of Genetic Data
Das Genetic Diagnostics Act (GenDG) regulates the protection and use of genetic data in Germany. The goal is to protect against disadvantage on the basis of genetic traits, especially discrimination in working life or in relation to insurance (§ 1 GenDG).
Every genetic examination for the diagnosis or prognosis of hereditary diseases requires the consent of the affected person and is accompanied by extensive documentation and information obligations. The disclosure of genetic information to third parties is strictly regulated.
Predictive and Preventive Diagnostics
Genetic examinations to determine the existence or risk of a hereditary disease (predictive diagnostics) are only permissible if they serve health care, the protection of one’s own offspring, or are related to pregnancy and reproduction.
Advisory Duties
Before conducting genetic testing, there is a statutory counseling obligation (§§ 9-11 GenDG). The significance, scope, and possible consequences of a diagnosis with respect to a hereditary disease must in particular be discussed.
Protection from Discrimination and Principle of Equal Treatment
Labor and Social Law
According to the General Equal Treatment Act (AGG), discrimination on the grounds of disability, which may include hereditary diseases, is prohibited. Employers may not discriminate against applicants or employees on the basis of (actual or suspected) hereditary diseases.
Social law includes regulations for compensation for disadvantages affecting people with disabilities. Hereditary diseases can lead to recognition as a disability and to entitlement to compensation for disadvantages (e.g. under severe disability law).
Insurance Coverage
According to § 18 GenDG, insurance companies are prohibited from using genetic data from predictive tests when concluding contracts or assessing claims, provided the insured sum does not exceed a specific threshold. The aim is to prevent people with a genetic risk from being excluded from insurance coverage.
Data Protection and Confidentiality in Hereditary Diseases
The disclosure of genetic information to third parties is subject to strict data protection regulations. Under the GenDG and the General Data Protection Regulation (GDPR), genetic data may only be shared with explicit consent. Physicians and other health professionals are bound by comprehensive confidentiality obligations.
International and European Legal Principles
In addition to the German GenDG, international conventions—especially the Council of Europe Convention on Human Rights and Biomedicine (Oviedo Convention)—as well as EU regulations on equal treatment and the processing of special categories of personal data must be observed.
Practical Significance and Case Law
Courts regularly address the handling of hereditary diseases in the context of protection from discrimination, the interpretation of the Genetic Diagnostics Act, and clarification of claims for damages. Relevant examples include rulings on limiting insurance obligations in case of known genetic risk or on damages due to faulty genetic counseling.
Conclusion
Hereditary diseases are relevant in a variety of areas of German law. Legislation provides a comprehensive protection framework against discrimination, guarantees data protection and self-determination, and establishes extensive counseling obligations in medical contexts. The legal situation is characterized by a high degree of protection for affected individuals and their descendants and places strong emphasis on transparency, education, and confidentiality in handling genetic data.
Frequently Asked Questions
What inheritance law consequences arise if an heir is found to have a hereditary disease?
If it is discovered that an heir suffers from a hereditary disease, this may have specific consequences in inheritance law. As a rule, the ability to accept an inheritance is hardly limited in terms of health impairments—even persons who are genetically predisposed or ill are capable of inheriting. However, if the hereditary disease leads to incapacity to contract, this can affect the acceptance of inheritance. In such cases, a legal representative is required to exercise the rights and obligations of the heir. It is also relevant whether the hereditary disease justifies a deprivation of the compulsory portion, a contestation of the will, or the appointment of an executor. For example, in the event of a serious mental illness, the testator can appoint an executor to oversee the administration of the estate in the interest of the ill heir. Furthermore, in advance, a so-called special inheritance arrangement (Behindertentestament) can be used to provide special protection for the estate in the event of significant disability or health impairment.
Can a confirmed hereditary disease lead to the contestation of a will?
A hereditary disease alone does not generally entitle one to contest a will. However, an impairment of testamentary capacity due to a hereditary disease (e.g. dementia, schizophrenia) may justify contesting a will if the free formation of the testator’s will at the time of the will’s execution was significantly affected. The legal key point is whether the testator was able to understand the meaning of their statements and the implications of their decisions at the time of making the will. Expert opinions, usually of a medical-psychiatric nature, must be obtained in disputed cases to determine or rule out testamentary capacity. If testamentary capacity was indeed lacking, the will is void and the statutory inheritance rules apply, or an earlier valid will comes into effect.
How does a hereditary disease affect the distribution of the estate in the case of compulsory portions?
The statutory provisions on compulsory portions (§§ 2303 ff. BGB) cannot generally be circumvented by reason of the existence of a hereditary disease. Persons entitled to a compulsory portion are entitled to it even if they suffer from a hereditary disease. In extreme cases (such as serious misconduct or endangerment of the estate due to illness), grounds for deprivation of the compulsory portion may be considered under § 2333 BGB. However, these are to be interpreted narrowly and must be legally proven; mere illness or inheritance of a disease is by no means sufficient. In family court proceedings, such aspects often play a role, e.g., in expert opinions on the duty of care, loyalty breaches, or conduct relevant to deprivation of the compulsory portion.
Can a testator make special provisions in the will because of a potential heir’s hereditary disease?
Yes, the testator has the right to include special provisions regarding ill descendants or close relatives in their will. Especially if a hereditary disease impairs the heir’s ability to manage an inheritance responsibly, the so-called special inheritance arrangement (Behindertentestament) is frequently chosen. Here, with the help of an executor or by arranging for successive inheritance, it is ensured that the estate is managed wholly or partially for the heir in a protected manner—for example, to avoid jeopardizing social benefits or to prevent abuse. It can also be regulated who should inherit after the death of the disabled heir. It is important that such testamentary provisions are legally secure and, in case of doubt, formulated with legal or notarial assistance, to prevent any contestation by third parties or social welfare authorities.
Does a hereditary disease affect the determination of legal capacity in those entitled to inherit?
Legal capacity is a central criterion in inheritance law, especially when accepting or rejecting an inheritance. If an heir suffers from a restriction of legal capacity due to a hereditary disease, this can have significant consequences. Persons lacking legal capacity cannot accept or reject an inheritance independently; a legal representative, such as a guardian or custodian, is required. This representative acts in the interest of the heir and may also reject the inheritance, for example, to prevent over-indebtedness. The court’s determination of incapacity is based on medical and psychiatric expert opinions and must be reviewed regularly.
Can severe hereditary diseases affect social welfare entitlements of those entitled to inherit?
If a share of an estate is paid out to a person with a severe disability, this can impact their eligibility for social benefits, since inherited wealth is considered as part of the means test. To prevent social welfare authorities from accessing the estate, the special inheritance arrangement (Behindertentestament) is often recommended, under which the heir cannot directly access the assets. Instead, the assets are subject to execution by an executor or set up as an inalienable usufruct. This ensures continued entitlement to public benefits while the assets remain protected in the long term. If there is no such arrangement, heirs or their representatives may have to transfer assets to the social welfare authorities until a demonstrated need is established. This is particularly significant for hereditary diseases with a foreseeable severe course.
What disclosure obligations exist in the event of inheritance with respect to a known hereditary disease of the heir towards other heirs or authorities?
Under German inheritance law, there is no obligation to proactively disclose a hereditary disease during the partition of an estate. However, this may become important in connection with legal capacity or the need for guardianship. Authorities such as the probate court must be informed if the rights of the heir can only be safeguarded by a legal representative. Disclosure obligations towards co-heirs may also arise if, for example, there are doubts about the ability of a party to act or if the division of the estate is obstructed. Comprehensive disclosure is required when coordinating with social welfare agencies to manage claims and prevent abuse. Severe hereditary diseases that endanger the estate or the individual may also impose duties of disclosure to the family court, for example if an extension of guardianship or protective measures need to be reviewed.
