Decision of the German Federal Court of Justice (BGH) of May 22, 2024 – Case No.: IV ZB 26/23
Even after a divorce, a will or inheritance contract in favor of the spouse can remain valid if the couple created the testamentary disposition before marriage. The German Federal Court of Justice (BGH) made this decision in a ruling on May 22, 2024 (Case No.: IV ZB 26/23).
In many marriages, it is common for spouses to draft a will and designate their partner as the heir. Even if the marriage fails and ends in divorce, this is usually not a problem because the appointment of the former spouse as an heir becomes invalid upon divorce, according to the commercial law firm MTR Legal Rechtsanwälte, which also provides advice on inheritance law. However, things become more complicated when the couple creates the testamentary disposition before marriage and later marries. If the marriage is subsequently dissolved, a will or inheritance contract in favor of the partner may still remain valid, as the BGH’s decision illustrates.
Unmarried Couple Concludes Inheritance Contract
In the case before the BGH, an unmarried couple entered into an inheritance contract in 1995, naming each other as sole heirs. The woman’s son and the man’s two children were designated as final heirs. This is somewhat comparable to a joint will or a “Berlin Testament” among married couples.
Some time after the inheritance contract was created, the couple decided to marry. However, the marriage failed, and in 2021 the divorce was finalized. The inheritance contract remained in effect after the divorce, but the former couple intended to have it dissolved by a notary. This did not happen because the woman passed away unexpectedly. Her ex-husband, who was to become her sole heir according to the inheritance contract, applied for a certificate of inheritance.
The woman’s son opposed this, arguing that he had become the sole heir of his deceased mother because the inheritance contract had become invalid due to the divorce. The legal dispute escalated to the BGH, where the judges in Karlsruhe ruled in favor of the deceased woman’s ex-husband. The inheritance contract remained valid despite the divorce.
Testamentary Disposition Remains Effective
The BGH explained that the inheritance contract contained no indications of a mutual intention by the contracting parties that the appointment as sole heirs should be nullified if the couple later marries and the marriage is dissolved. Additionally, the fact that the parties might have agreed during their divorce to dissolve the inheritance contract amicably does not lead to a different result because there was no signed notarized declaration, thus lacking a formally valid implementation.
The BGH further ruled that the appointment of the ex-husband as heir was not invalid under § 2077 in conjunction with § 2279 of the German Civil Code (BGB). According to § 2077(1) BGB, a testamentary disposition in favor of a spouse is invalid if the marriage is dissolved before the testator’s death. According to § 2077(2) BGB, a similar provision applies to engagements. However, these rules do not apply in the present case because they presuppose the existence of a marriage or engagement at the time the testamentary disposition is made, as the judges in Karlsruhe clarified.
Waiver of Legal Consequences
At the time the inheritance contract was created, the couple was neither married nor legally engaged. The inheritance contract only mentioned a “possible subsequent marriage.” This wording is far too vague for an engagement with a serious promise of marriage, according to the BGH. This confirms the ex-husband’s statement that marriage was not contemplated when the inheritance contract was concluded, especially since both had already gone through a divorce at that time. The provisions of § 2077 BGB are therefore not analogously applicable, the BGH further explained. In non-marital partnerships, it is often common to consciously waive the legal consequences that accompany the end of a relationship.
Nevertheless, it remains important, especially for unmarried couples, to create a will or inheritance contract. Without a testamentary disposition, the partner is left empty-handed, and the statutory succession applies.
MTR Legal Rechtsanwälte provides advice on wills, inheritance contracts, and other topics related to inheritance law.
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