Definition and legal classification of the survivor’s allowance
The survivor’s allowance is a tax benefit under the German Inheritance and Gift Tax Act (ErbStG). It primarily concerns the taxation of survivor benefits that spouses, registered civil partners, or children receive in the context of an inheritance. The aim is to provide tax relief for the financial security of bereaved dependents in the event of death and to facilitate their economic support.
Legal foundations
Inheritance and Gift Tax Act (ErbStG)
The central legal provision for the survivor’s allowance is found in § 17 ErbStG. This paragraph regulates both the amount of the allowance as well as the eligible groups of people and specific deductions.
Wording of § 17 ErbStG (excerpt)
“(1) The spouse or civil partner of the deceased receives a special survivor’s allowance of 256,000 euros. Children receive a special survivor’s allowance, the amount of which is graduated according to age.”
Scope of application and purpose
The purpose of the survivor’s allowance is to grant survivors protection and financial security. It does not merely cover the acquisition of assets, but explicitly takes survivor benefits into account, such as widow’s pensions, retirement benefits, or maintenance claims.
Eligible groups
Spouses and registered civil partners
According to § 17 para. 1 sentence 1 ErbStG, the surviving spouse or civil partner of the deceased may claim a survivor’s allowance of €256,000 in total. The allowance is only granted once per inheritance event. It is a personal allowance whose amount is independent of the actual inheritance or value of the estate.
Children and grandchildren
Children of the deceased can also receive a survivor’s allowance pursuant to § 17 para. 2 ErbStG. The amount is age-dependent and is set by the legislature using a table. For children up to the age of 27, the allowance is degressive, depending on their age at the time of inheritance.
Grandchildren are generally only entitled to the survivor’s allowance if both parents have died before or there is no entitlement to the allowance.
Requirements and grounds for exclusion
The claim to the survivor’s allowance requires that the acquisition takes place through inheritance, legacy, or claimed compulsory portion. If the insured person dies and a claim to survivor benefits is established, the survivor’s allowance is applicable. If, for example, the beneficiary withdraws before the inheritance event due to divorce or dissolution of the partnership, the allowance lapses.
Calculation and deduction of the survivor’s allowance
Extent and transition
The allowance is granted in addition to the usual personal exemptions under § 16 ErbStG. The relevant tax class for the survivor’s allowance is determined by the relationship to the deceased.
Deduction of survivor benefits
According to § 17 para. 2 ErbStG, certain survivor benefits are deducted from the survivor’s allowance, provided they are tax-free or tax-privileged. These include in particular:
- Survivors’ pensions from the statutory pension insurance
- Civil service survivor’s pensions under civil servant regulations
- Comparable survivor benefits from employers or public bodies
The annual pension or survivor’s benefit is deducted at the capitalized value for the survivor benefit determined under the Valuation Act. The survivor’s allowance decreases accordingly, but at most to zero.
Tax consequences after utilization of the allowance
If the value of the survivor benefits does not exceed the allowance, any taxable acquisition remains tax-free to that extent. If the capitalized value exceeds the allowance, the excess amount is subject to tax as a taxable acquisition.
Special features and differentiations
Distinction between survivor’s allowance and other allowances
The survivor’s allowance is independent of the general personal exemptions under § 16 ErbStG or other specific tax privileges. It applies exclusively to survivor benefits for the groups of people specified in the law.
International aspects
In cross-border inheritance cases and in the case of foreign nationality, the provisions of the ErbStG are generally also applied with regard to the survivor’s allowance, provided the law of succession for the deceased provides for German law or assets are located in Germany.
Practical relevance and significance of the survivor’s allowance
The survivor’s allowance is of considerable importance in estate planning for providing tax relief to relatives. Through targeted succession planning, the entitlement to the survivor’s allowance can be optimally utilized within the family. Taxpayers may structure their estate so that the allowance is fully used and the tax burden is minimized.
Case law and administrative practice
Courts and tax authorities have clarified the requirements and deductions for the survivor’s allowance in various judgments and administrative instructions. In the past, disputes often arose regarding how to value the capital amount and the actual pension entitlement (see application decrees to the ErbStG and federal administrative regulations).
Conclusion
The survivor’s allowance under § 17 ErbStG is a central tax benefit for spouses, civil partners, and children under inheritance tax law. It grants an additional exemption on certain survivor’s benefits, whereby the allowance must be reduced by other tax-exempt benefits. Practical implementation requires precise knowledge of the statutory requirements and their application to individual cases.
See also:
- Inheritance tax
- Gift tax
- [Freibetrag Erbschaftsteuer]
- Valuation Act (BewG)
Frequently asked questions
How is the survivor’s allowance taken into account for inheritance tax?
Within inheritance tax law, the survivor’s allowance serves to provide special tax treatment for certain benefits from survivor provisions (such as ongoing pension claims of the surviving spouse or children). The deduction is in addition to the general personal allowance under § 16 ErbStG. The survivor’s allowance is deducted from the taxable acquisition upon application, provided a corresponding entitlement exists. The requirements of § 17 ErbStG are decisive. If the estate beneficiary receives multiple survivor’s benefits, the allowance is nevertheless only considered once. However, the survivor’s allowance can only be deducted insofar as no tax-free survivor benefits under other statutory provisions (e.g., pursuant to § 3 No. 50 EStG) are credited toward the acquisition. The specific amount of the survivor’s allowance depends on the tax class and relevant age limits. The existence of the entitlement must be demonstrated with appropriate documents (e.g., pension award, civil service documents).
What documentation is required to claim the survivor’s allowance?
To claim the survivor’s allowance, the tax office requires detailed documentation of the survivor benefit entitlement. This includes, in particular, certificates of the death of the deceased, proof of the marital or parental relationship (such as marriage and birth certificates), notifications of the granting of widow’s/widower’s or orphan’s pensions, as well as detailed information on the type and amount of the survivor benefits received. If the beneficiary is a civil servant, any pension entitlements must be certified by the relevant pension service. If survivor benefits exist for different reasons (e.g., occupational and statutory pensions), all documents must be submitted. The tax office will examine the entitlement and the amount of the allowance based on these documents.
Can the survivor’s allowance be reduced or lapse?
Yes, a reduction or lapse of the survivor’s allowance may occur, particularly if the beneficiary already receives survivor benefits that are tax-free under other provisions, or if benefits from statutory pension insurance must be considered. According to § 17 para. 2 sentence 2 ErbStG, the allowance is reduced by the capitalized value of statutory pension entitlements, provided these accrue to the beneficiary due to the death of the deceased. Likewise, the allowance lapses if exclusively non-taxable or survivor benefits not covered by inheritance tax law exist. The deduction is calculated according to a specific formula for determining the capitalized value of ongoing benefits, taking into account life expectancy as well as a statutory interest rate. The reduction is mandatory and is made regardless of the actual receipt of the survivor benefit.
Are there age limits to consider for the survivor’s allowance?
Yes, inheritance tax law stipulates specific age limits for children, up to which the survivor’s allowance may be claimed. Pursuant to § 17 para. 2 ErbStG, children of the deceased are generally only entitled to the survivor’s allowance until reaching the age of 27. This provision is intended to secure the support of minor or dependent children in education. On reaching the age limit, the entitlement to the survivor’s allowance lapses, leaving only the personal exemption under § 16 ErbStG. For spouses, on the other hand, there is no comparable age limit; they are entitled to the survivor’s allowance without age-related restrictions.
How is the capitalized value of survivor benefits calculated?
The calculation of the capitalized value of survivor benefits is carried out in accordance with the guidelines of the Valuation Act (§§ 14, 15 BewG). The annual survivor benefit must be determined, taking into account any different payment intervals. The capitalized value is calculated using the statutory assessment interest rate (currently 5.5% per annum) and the statistical life expectancy according to Appendix 9 to the BewG. Present value factors are used, which take into account the beneficiary’s age and the expected duration of the pension. The sum calculated in this way is then used to reduce the survivor’s allowance. If the benefit is limited in time, the capitalized value will be calculated for the shortened period accordingly.
Is the survivor’s allowance applicable to non-marital partnerships?
No, under current inheritance tax law the survivor’s allowance is only provided for spouses, registered civil partners under the Registered Partnership Act, biological children and, in individual cases, stepchildren or adopted children. Partners in a non-marital partnership are not entitled to the survivor’s allowance, even if they are in a situation comparable to marriage. The same applies to distant relatives or other beneficiaries. This unequal treatment is a result of the preferential tax treatment of traditional family structures under German law and has been confirmed by the courts.
Can the survivor’s allowance be claimed multiple times, for example, in cases of consecutive deaths?
The survivor’s allowance is personal and may be claimed once for each acquisition on account of death. If, for example, a child inherits from both father and mother within a few years and is entitled to survivor support in each case, he or she is entitled to a (possibly reduced) survivor’s allowance for each inheritance case. However, the allowance is only granted per inheritance event if the legal requirements are met and sufficient evidence is provided. An ‘accumulation’ of survivor’s allowances within a single inheritance process is not possible. Each presumed event requires an individual assessment.
