Disputes over inheritance are common, particularly when it comes to the statutory share. A recent judgement by the Higher Regional Court of Braunschweig addresses the question, which frequently arises in practice, of when a claim to a compulsory share is deemed to have been validly asserted. The judgement clarifies when a penalty clause relating to the compulsory share applies and when it does not.
What is a penalty clause relating to the compulsory share?
Many married couples name each other as sole heirs in their wills and designate their children as residual heirs – that is, as heirs following the death of both parents. To prevent the children from immediately claiming their statutory share following the death of the first parent – and thereby reducing the estate of the surviving parent – a penalty clause relating to the statutory share is often included in the couple’s joint will.
Such a clause could, for example, be worded in such a way that a child who claims their statutory share following the death of the first-to-die parent receives only that statutory share – and not the full inheritance as the sole heir – even after the death of the surviving parent. It thus acts as a sort of „lesson“ for children who claim their statutory share.
The case: What had happened?
In 1971, a married couple had drawn up a joint will containing such a penalty clause. Following the husband’s death in 1976, the mother sold the family home and left part of the proceeds to her daughter. In 1984, the mother drew up a new will in which she once again named both children as heirs. The daughter confirmed in writing that she had already received her share of the inheritance in 1981.
Following his mother’s death, the son applied for a certificate of sole inheritance – on the grounds that, by accepting the money, his sister had claimed her statutory share and was therefore excluded as a co-heir. The probate court rejected the application; the son lodged an appeal but was also unsuccessful before the Higher Regional Court of Braunschweig.
The court’s decision
Braunschweig Higher Regional Court, Order of 13 February 2025 – Case No. 10 W 11/25
A compulsory share is only deemed to have been „claimed“ within the meaning of the penalty clause if it is demanded in a serious and unambiguous manner. The parent must unambiguously interpret the behaviour of the person entitled to the compulsory share as a demand for that share.
In this case, these conditions were not met: the mother had given the money to her daughter voluntarily and of her own accord. She was neither burdened nor pressured in any way. The gift was clearly intended to ensure a fair division of the inheritance between the siblings – entirely in accordance with the will.
The clause penalising claims to a compulsory share is intended to prevent the surviving spouse from falling into financial difficulties as a result of such claims. This protective purpose was not at issue here, which is why the clause does not apply.
What does this mean in practice?
To avoid disputes, the spouses’ joint will may expressly stipulate that the penalty clause relating to the statutory share applies only if the child claims the statutory share against the express wishes of the surviving parent. This means that payments made by mutual agreement – for example, to make use of tax allowances – remain possible without jeopardising the child’s right to inherit.
Another option is the so-called optional exclusion clause: this grants the surviving spouse the right to subsequently amend the appointment of the final heir by will. This provides greater flexibility – but it has one drawback: if the surviving spouse is no longer capable of making a will, or if claims to a compulsory share are only asserted after their death, it is no longer possible to make any adjustments.
The correct drafting of a penalty clause relating to the compulsory share depends on the individual circumstances. As solicitors in Fulda, Frankfurt and other locations in Hesse and Thuringia, we can help you draft your will in such a way as to avoid any future disputes over its interpretation.
Do you have any questions about drawing up your will or the clause regarding the compulsory share?
Our solicitors specialising in inheritance law provide expert advice that is clear and accessible, treating you as an equal – with a personal and tailored approach.
