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Inheritance despite an effective disclaimer of an inheritance
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In a recent order (Ref. 21 W 146/23, not final), the Higher Regional Court (OLG) Frankfurt am Main addressed the question under what conditions a person can still become an heir despite having previously declared a disclaimer of the inheritance. The proceedings shed light in particular on the civil-law rules on so-called substitute succession and on the effects of a renewed statutory succession following a disclaimer.
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Facts: Disclaimer by daughter – inheritance by moving up?
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At the heart of the case was the daughter of a testatrix who disclaimed the inheritance that had accrued to her. The aim of this declaration was to bring about a transfer of the estate to her own children. After these children in turn disclaimed the inheritance and other potential subsequent heirs likewise waived it, ultimately no other heir remained. The initial question was whether the daughter—although her disclaimer was effective—nevertheless enters as heir by so-called moving up.
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Decision of the OLG Frankfurt am Main
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The OLG Frankfurt am Main held that the daughter became an heir despite her disclaimer. The decisive legal basis for this follows from sections 1953, 1954 and 1957 of the German Civil Code (BGB) and the substitute succession provided for therein. As soon as all closer-ranking substitute heirs likewise disclaim the inheritance and no other statutory or testamentary heirs exist, the heir who originally disclaimed enters again as a statutory heir.
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Specifically, this means: Due to the multiple disclaimers and the absence of further substitute heirs, the daughter’s status as heir revives again under the rules of statutory succession. The legislator’s intended avoidance of an ownerless inheritance led in this case to the daughter’s heirship—initially disclaimed—arising again.
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Legal assessment and practical consequences
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No definitive effect of the disclaimer where substitute heirs are lacking
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In the case decided, the court made clear that disclaimed heirship does not necessarily cease definitively. In cases where suitable substitute heirs or subsequent heirs are lacking, the group of statutory heirs may again extend to those persons who were originally already eliminated by disclaimer. The decision provides clarity regarding the course of statutory succession after multiple disclaimers and emphasizes the scope of the provisions on the moving up of excluded heirs.
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Significance for estate administration
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This order provides probate courts and succession planning with an important insight into the systematics of disclaimer and moving up in German inheritance law that are to be interpreted. In particular, when administering estates and when planning disclaimers, attention can be paid to what effects missing substitute-heir positions have in constellations such as the present one.
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Conclusion and note on the need for advice
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The decision of the OLG Frankfurt am Main sheds light on the special constellations under which the effect of a disclaimer of inheritance can be offset by statutory moving up. For questions concerning the structuring of succession, the disclaimer of inheritances, and the effects of multiple disclaimers, a well-founded review of all legal options and risks is advisable. Interested parties can find comprehensive information and individual support through legal advice in inheritance law from MTR Legal Rechtsanwälte.
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