Inheritance Law Guide
The Berliner Testament
done right.
The Berliner Testament secures the partner and keeps the wealth together. Yet after the first death it becomes binding, and without clever drafting it gives away the children's tax allowances. This guide explains the unity solution, the binding effect, the forfeiture clauses and the tax trap, with every section to look up.
In short
What is a Berliner Testament?
The Berliner Testament is a joint will of spouses. They appoint each other as sole heirs, and the children inherit only after the death of the longer-living spouse (§2269 BGB). The advantage: the surviving partner is secured and keeps the undivided wealth. The price: after the first death the will is binding, and without clever drafting it gives away the children's inheritance-tax allowances.
How it works
The unity solution
The Berliner Testament works in two stages. The surviving spouse first steps into the place of intestate succession as sole heir, and the final heirs follow afterwards (§2269 Abs. 1 BGB).
| Stage | What happens | Basis |
|---|---|---|
| First death | The surviving spouse becomes sole heir. The children are disinherited for now and only hold a Pflichtteil claim. | §2269 I, §2303 |
| Second death | After the death of the longer-living spouse the entire estate passes to the final heirs, usually the joint children. | §2269 I |
Binding effect
When it becomes binding
The reciprocal dispositions depend on one another (§2270 BGB). As long as both are alive, revocation is possible. After the first death it is over, and that is exactly what spouses must know before they sign.
| Point in time | What applies | Basis |
|---|---|---|
| While both spouses are alive | Revocation is possible, but only through a declaration recorded by a notary and served on the other spouse. A secret unilateral change is ruled out. | §2271 I, §2296 |
| After the first death | The right of revocation expires. The survivor is bound to the final heirs and becomes free again only by disclaiming the inheritance. | §2271 II |
Source: §§2270, 2271 BGB
Forfeiture clauses
Fending off the Pflichtteil
On the first death the children are disinherited and could demand their Pflichtteil (§2303 BGB). Two clauses aim to prevent that and protect the surviving spouse.
| Clause | How it works | Basis |
|---|---|---|
| Pflichtteil forfeiture clause | If a child demands the Pflichtteil on the first death, it is limited to the Pflichtteil on the second death too and loses the final share. | §2074, §2303 |
| Jastrow clause | Sharpened form: children who do not demand receive a deferred legacy, payable only on the second death, which reduces the later estate. | §2269 II |
Caution with the Jastrow clause: the surviving spouse must tax the deferred legacy already on the first death but can only pay it out on the second. The Federal Fiscal Court (Bundesfinanzhof) has confirmed this economic double burden. Such clauses belong in expert hands.
Tax trap
The forfeited allowance
A married couple with two children, family wealth of around 1,000,000 euros. Each child has an allowance of 400,000 euros against each parent (§16 ErbStG). What does the Berliner Testament make of that?
With the Berliner Testament
First death
The spouse inherits everything, the children inherit nothing. Both children's allowances against the first-dying parent lapse unused.
Second death
The entire estate passes to the children at once. Each child has only one allowance of 400,000 euros left.
Lost allowance
400,000 euros per child
With a separate arrangement
First death
The children inherit a share and use their allowance against the first-dying parent.
Second death
Another allowance per child, this time against the second-dying parent.
Usable allowance
800,000 euros per child
Whatever exceeds the allowance is taxed by the children in tax class I, graded from 7 to 30 percent depending on the amount (§19 ErbStG). This is exactly where the arrangement decides five-figure sums.
Frequent questions
Understanding the Berliner Testament
What is a Berliner Testament?
The Berliner Testament is a joint will of spouses in which they appoint each other as sole heirs and let the children inherit only after the death of the longer-living spouse (§2269 Abs. 1 BGB). On the first death the surviving spouse therefore inherits the entire estate, and the children become final heirs (Schlusserben). A joint will can only be made by spouses; registered civil partners are treated equally (§2265 BGB).
Can unmarried couples make a Berliner Testament?
No. The joint will, and with it the Berliner Testament, is reserved for spouses under §2265 BGB; registered civil partners are placed on an equal footing. Unmarried couples can only secure each other through two separate individual wills or a notarised inheritance contract (Erbvertrag). The inheritance contract creates a similar binding effect but must be recorded before a notary.
What does the binding effect of the Berliner Testament mean?
As long as both spouses are alive, each may revoke their reciprocal dispositions, but only through a declaration recorded by a notary and served on the other spouse (§2271 Abs. 1 in conjunction with §2296 BGB). On the death of the first spouse the right of revocation expires (§2271 Abs. 2 BGB). The surviving spouse is then bound by the appointment of the final heirs and can no longer change it unilaterally. This binding effect is the main reason the Berliner Testament often feels too rigid.
Can the surviving spouse still change the Berliner Testament?
In principle, no. After the first death the survivor is bound by the reciprocal dispositions (§2271 Abs. 2 BGB), and the final heirs are fixed. The only way out is to disclaim what was left to them and instead take the statutory share together with the Pflichtteil. Anyone who wants to keep flexibility includes an amendment or release clause that expressly allows the survivor to dispose anew later.
What is a Pflichtteil forfeiture clause (Pflichtteilsstrafklausel)?
On the first death the children are disinherited and could claim their Pflichtteil, that is half of the statutory share (§2303 BGB). This would burden the surviving spouse financially. The forfeiture clause therefore provides that whoever demands the Pflichtteil on the first death is limited to the Pflichtteil on the second death too and loses their final share. The clause has a deterrent effect because the child risks the larger final share.
What is the Jastrow clause?
The Jastrow clause is a sharpened forfeiture clause. Children who do not demand the Pflichtteil on the first death receive a legacy equal to their inheritance share, but payable only on the death of the longer-living spouse (§2269 Abs. 2 BGB). This deferred legacy (betagtes Vermächtnis) later reduces the estate and with it the Pflichtteil of a child that did demand. The clause carries its own tax trap, however, because the legacy can be charged twice in economic terms.
What is the tax trap of the Berliner Testament?
On the first death only the spouse inherits and the children inherit nothing. The inheritance-tax allowance of each child against the first-dying parent therefore lapses, a full 400,000 euros per child (§16 ErbStG). On the second death the entire family wealth passes to the children at once, and each child has only one allowance left. Up to 400,000 euros of allowance per child can be lost unused, and the concentration pushes the tax into higher brackets (§19 ErbStG).
How can the tax trap be avoided?
By using the children's allowances already on the first death. Common routes are cash legacies to the children on the first death, a so-called super-legacy (Supervermächtnis) that leaves the surviving spouse room to manoeuvre, or lifetime gifts on a ten-year cycle (§14 ErbStG). The separation solution with prior and subsequent heirs (Vor- und Nacherbschaft) is also an option. Which route fits depends on the size of the estate and the family situation and belongs in an individual arrangement.
Keep calculating
Matching calculators
Inheritance Tax Calculator
Allowances, tax class and estimated German inheritance tax at a glance. This is how you see what the tax trap of the Berliner Testament really costs.
Open calculatorPflichtteil Calculator
What is a disinherited child entitled to on the first death? Half of the statutory share under §2303 BGB, quickly calculated here.
Open calculatorA standard Berliner Testament often costs tax.
We design it properly.
Securing your partner and a low inheritance-tax bill can go together when the clauses are right. In a personal conversation I check your will for binding effect, forfeiture clauses and allowances and show how to combine both.