Berliner Testament 2026: Template, Pflichtteil, Mistakes

What is a Berliner Testament?

The Berliner Testament is the most popular form of will among married couples in Germany. It is a joint will under § 2269 BGB in which the spouses appoint each other as sole heirs. The shared children are designated as residual heirs: they inherit only once the second parent has died.

The goal is clear. The surviving spouse should be secure. They should be able to use the entire estate without the children demanding their share immediately. In practice this means the surviving partner can stay in the family home, use the accounts and maintain their standard of living.

Without a will, statutory succession would apply instead. Under the matrimonial regime of Zugewinngemeinschaft (community of accrued gains, the default matrimonial property regime in Germany), the surviving spouse would receive only half, with the other half going to the children. How that splits in practice is set out in the guide on statutory succession without a will. The Berliner Testament shifts this ratio entirely in favour of the surviving partner and avoids the often conflict-prone Erbengemeinschaft (community of heirs, joint ownership of the estate before division, §§ 2032 BGB) between widow or widower and children.

How it works at a glance

1. First death: One spouse dies. The other becomes sole heir of the entire estate.
2. Second death: The surviving spouse dies. The children inherit the remaining estate as residual heirs.

Einheitslösung or Trennungslösung — which construction applies?

Anyone who really wants to understand the Berliner Testament needs to grasp one central distinction. The statute knows two fundamentally different constructions with far-reaching consequences for tax and inheritance law.

The Einheitslösung (the statutory default under § 2269 para. 1 BGB) makes the surviving spouse an unrestricted full heir. Their own assets and the inherited assets merge into a single mass. The children ultimately inherit the entire joint estate, but only as heirs of the last to die — they do not inherit from both parents.

The Trennungslösung (preliminary heir / subsequent heir construction) keeps the assets of the first deceased legally separate. The surviving spouse becomes Vorerbe (preliminary heir), the children become Nacherbe (subsequent heir). At the second death, the assets of the first deceased pass directly from there to the children — as two separate acquisition events. For tax purposes this produces a second Freibetrag because the children inherit twice from one parent.

Which of the two solutions applies depends on the wording of the will and, where the wording is unclear, on the interpretation rule in § 2269 BGB. In case of doubt, the Einheitslösung is presumed. Anyone who wants the Trennungslösung must say so expressly in the will. Practice shows that the vast majority of handwritten Berliner Testamente unwittingly choose the Einheitslösung and waste the tax-optimisation potential of the Trennungslösung.

Berliner Testament and Zugewinngemeinschaft

Most German married couples live under the statutory regime of Zugewinngemeinschaft. That has a consequence for the Berliner Testament which is often overlooked. On the death of one spouse, the equalisation of accrued gains is realised on a flat-rate basis by increasing the statutory share by one quarter (§ 1371 para. 1 BGB). This "inheritance-law equalisation of gains" is tax-free, but only if the surviving spouse actually becomes heir or legatee — which is the case under a Berliner Testament.

In certain constellations it can be more attractive for the children to force matrimonial-law equalisation of gains instead of the inheritance-law route (§ 1371 para. 2 BGB). The surviving spouse renounces the inheritance and instead demands the concrete calculation of the accrued gains. That is relevant where one spouse achieved unusually high gains during the marriage, for instance through a successful business. Details on the interaction between these two rules are in the article on Zugewinngemeinschaft and inheritance.

Pros and cons at a glance

Template for a Berliner Testament

A Berliner Testament must be written entirely by hand by one of the spouses and signed by both (§ 2267 BGB). The other spouse must countersign the joint declaration, stating place and date.

Sample wording

Our joint will

We, [first name surname husband], born on [date], and [first name surname wife], born on [date], resident at [address], hereby appoint each other as sole heirs.

After the death of the last to die, our shared children [first name surname child 1] and [first name surname child 2] shall inherit in equal shares as residual heirs.

Should one of our children demand the Pflichtteil at the first death, that child shall also receive only the Pflichtteil at the second death (Pflichtteilsstrafklausel, penalty clause in a Berliner Testament reducing a claimant's residual share if they demand the statutory minimum at the first death).

[Place], dated [date]

[Handwritten signature husband]

[Handwritten signature wife with place and date]

Formal requirements (§ 2267 BGB)

Note: This template is an orientation aid. A Berliner Testament should be tailored to your specific family and asset situation. Where real estate, business shareholdings or blended-family constellations are involved, notarisation is recommended. It secures the formal validity and delivers substantive advice on the Pflichtteilsstrafklausel, remarriage clause and tax optimisation.

Pflichtteil under a Berliner Testament

The Berliner Testament has a structural weakness. It cannot prevent the children from demanding the Pflichtteil at the first death. Under § 2303 BGB, the Pflichtteil belongs to every disinherited descendant and amounts to half the value of the statutory share. Important point: the Pflichtteil is a pure monetary claim against the heir, not a participation in the estate itself. The full calculation rules, special cases and deadlines are set out in the article on the Pflichtteil in inheritance.

Why the Pflichtteil becomes a problem

Under a Berliner Testament the children are effectively disinherited at the first death because the surviving spouse becomes sole heir. The children are designated as residual heirs but have no inheritance entitlement at the first death. What they do have is the Pflichtteil.

Worked example: Father dies. Estate: 800.000 EUR. Wife and two children, Zugewinngemeinschaft. Wife's statutory share: 1/2 (including the flat-rate gains equalisation under § 1371 BGB). Statutory share of each child: 1/4. Pflichtteil of each child: 1/8 = 100.000 EUR. If both children claim the Pflichtteil, the widow has to pay out 200.000 EUR within a short period — often from illiquid assets such as a property.

The Pflichtteilsstrafklausel

The standard solution is a penalty clause in the will. Whoever demands the Pflichtteil at the first death is also restricted to the Pflichtteil at the second death. The clause acts as a deterrent. It does not prevent the Pflichtteil claim itself.

Wording: "If one of our children demands the Pflichtteil on the death of the first to die, that child shall also receive only the Pflichtteil on the death of the last to die."

The penalty clause works well in practice as long as the estate at the second death is large enough to make waiting worthwhile. With smaller estates, or where the surviving parent could consume the assets, the deterrent effect is weak.

The Jastrow clause (tightened penalty clause)

For cases where the simple penalty clause is too weak, the Jastrow clause offers a sharper tool. Here the children who refrain from claiming the Pflichtteil receive a legacy at the first death which only falls due on the death of the surviving parent. The child who claims the Pflichtteil walks away empty-handed because it loses the legacy. The legacy at the same time reduces the estate at the second death, which lowers the Pflichtteil in the second round. The Jastrow clause is significantly more effective than the simple penalty clause, but also more complex to draft and tax-sensitive.

A systematic comparison of the three most important protective clauses, with sample wordings and practical recommendations, is set out in the detailed analysis on Pflichtteilsstrafklauseln im Vergleich — including the remarriage clause and the tax implications. If you would rather rule out the Pflichtteil claim contractually in advance, the article on the Pflichtteilsverzicht (notarised lifetime waiver of the statutory minimum share, § 2346 BGB) is the right read.

The Bundesfinanzhof clarified the tax treatment of the Jastrow clause at the highest level in its judgment of 11 October 2023 (II R 34/20). The deferred legacy is not yet due at the first death. The surviving spouse can therefore not deduct it as an estate liability. The child taxes the acquisition only on the death of the surviving spouse and, if it is also an heir at that point, can then deduct the legacy as an estate liability. Anyone who wants to use the Jastrow clause for tax purposes must therefore structure the due date carefully — otherwise the optimisation only kicks in at the second death.

Pflichtteilsergänzung for lifetime gifts

Many couples try to reduce the Pflichtteil through lifetime gifts. § 2325 BGB prevents that. Gifts within the last ten years before the death are added back to the estate proportionally for the Pflichtteil calculation. The value is reduced by 10 percent for each full year that has passed. For gifts between spouses, the clock only starts running when the marriage ends. This Pflichtteilsergänzung (claim for supplementary statutory share covering lifetime gifts within 10 years, § 2325 BGB) makes short-term "asset transfers" before death practically ineffective.

Liquidity trap: when the money is not there

The Pflichtteil falls due as a monetary claim as soon as it is asserted. It becomes time-barred only three years after the heir becomes aware of the death and the disinheriting disposition (§§ 195, 199 BGB). A widow or widower who essentially inherits an owner-occupied family home often faces an acute liquidity problem. The assets are tied up; the children demand cash.

The statute knows an exception. In cases of "undue hardship" caused by the nature of the estate items, the person liable for the Pflichtteil can demand deferment (§ 2331a BGB). The statute does not set a fixed monetary threshold. Deferment requires that immediate satisfaction cannot be reasonably expected of the obligor when balanced against the legitimate interests of the Pflichtteil claimant. In practice the courts rarely intervene in favour of the heir. The more effective precaution is a term-life insurance policy covering the expected Pflichtteil amount, or a direct deferment agreement with the children after the death.

The binding effect: what many underestimate

After the first spouse's death, the Berliner Testament develops a binding effect. The surviving spouse can no longer change the appointment of residual heirs as a matter of principle (§ 2271 BGB). They cannot make a new will nor change the succession in favour of a new partner or other people.

The Berlin Court of Appeal (Kammergericht Berlin) sharpened the principle in its decision of 4 December 2015 (6 W 87/15). Dispositions set out in a joint will are freely revocable under the general rules (§ 2253 para. 1 BGB) — as long as both spouses are alive. Once reciprocity under § 2270 BGB is established and one spouse has died, the binding effect applies. The KG emphasises that the presumption rule of § 2270 para. 2 BGB almost always applies where spouses appoint each other as sole heirs and name their shared children as residual heirs — precisely the classic Berliner-Testament constellation.

In my advisory practice I regularly see widows and widowers who only recognise the scope of this binding effect years later, usually when trying to bring a new life partner into the picture or to remove a conflict-prone child from the residual-heir position. Both are impossible under a Berliner Testament without an exemption clause.

What the surviving partner can still do

• Dispose of the assets freely during their lifetime (consumption, sale)
• Make gifts, although not with the intent of disadvantaging the residual heirs (§ 2287 BGB)
• Settle their own matrimonial regime in a new marriage

What the surviving partner can no longer do

• Change the residual succession
• Appoint a new heir
• Revoke the joint will

This binding effect is frequently underestimated in practice. Anyone who finds a new life partner after their spouse's death or whose relationship with the children deteriorates has almost no room to manoeuvre. One solution is the remarriage clause (Wiederverheiratungsklausel). If the surviving spouse remarries, their legal position automatically converts from full inheritance into a preliminary heir / subsequent heir construction. The assets of the first family are then protected against claims from the second family. The clause must be expressly included in the will.

Exemption clause for flexibility

A further design option is the Freistellungsklausel (exemption clause). Here the spouses agree that the surviving partner may change the residual succession, for instance to redistribute between the shared children or to consider individual grandchildren. Without such a clause any adjustment is excluded.

Detrimental gifts (§ 2287 BGB)

A frequently overlooked limit. The surviving spouse may dispose of the assets freely during their lifetime, but gifts made with the intent of disadvantaging the residual heirs are challengeable. The residual heirs can demand the value of the gift back after the second spouse's death under § 2287 BGB. The limitation period is three years from knowledge. In practice such claims are costly to pursue because the intent of disadvantage has to be proven. A typical indicator is a gift to a new life partner shortly after the first spouse's death.

The inheritance tax trap

The Berliner Testament is often disadvantageous from a tax perspective. On the death of the first parent the surviving spouse inherits everything. The children inherit nothing. This leaves the Freibetrag of 400.000 EUR per child vis-à-vis the deceased parent unused (§ 16 para. 1 no. 2 ErbStG).

Worked example

Family: Married couple with two children. Total assets: 1.200.000 EUR (600.000 EUR per spouse).

With Berliner Testament:

• First death: surviving spouse inherits 600.000 EUR. Freibetrag: 500.000 EUR. Taxable acquisition: 100.000 EUR. Erbschaftsteuer (German inheritance tax, governed by ErbStG): 11.000 EUR (tax class I, 11 percent).
• Second death: 1.200.000 EUR passing to two children (600.000 EUR each). Freibetrag per child: 400.000 EUR. Taxable acquisition per child: 200.000 EUR. Erbschaftsteuer per child: 22.000 EUR. Total: 44.000 EUR.
• Total Erbschaftsteuer: 55.000 EUR.

Without Berliner Testament (children inherit at both deaths):

• At the first death each child receives 1/4 of 600.000 EUR = 150.000 EUR. Fully within the Freibetrag — no tax.
• At the second death each child inherits the parental share from the surviving partner. Depending on asset development, a large part stays within the Freibetrag.
• Savings against the Berliner Testament: regularly 25.000 to 45.000 EUR.

Calculate the effect for your situation with the Erbschaftsteuer calculator. A detailed overview of all allowances and tax rates is in the guide on Erbschaftsteuer 2026: table and allowances.

Keeping the family-home exemption

A central exemption under a Berliner Testament is the tax-free transfer of the owner-occupied family home to the surviving spouse under § 13 para. 1 no. 4b ErbStG. Requirements: the deceased used the property themselves, the heir uses it for their own residence without delay and maintains that use for at least ten years. If the property is sold or rented out earlier, the exemption falls away retroactively. The children can also inherit the family home tax-free after the second death, but limited to 200 m² of living space (§ 13 para. 1 no. 4c ErbStG).

Supervermächtnis — the elegant tax optimisation

A professional design to make use of the children's allowances despite a Berliner Testament is the Supervermächtnis (super-legacy). The surviving spouse is appointed as full heir. The children at the same time receive a legacy up to the amount of their Freibetrag. The surviving spouse decides flexibly, within the limits of fulfilling the legacy, which assets flow to the children and at what point in time (within a tax-prescribed window). The advantage. The children's allowances are exhausted at the first death, while the spouse retains factual control over the assets. The Supervermächtnis is sensible only with notarisation and tax advice given its complexity. From around 800.000 EUR of assets the savings start to justify the advisory effort.

Alternatives to the Berliner Testament

Vor- und Nacherbschaft

Instead of installing the surviving spouse as full heir, they are designated as Vorerbe. The children become Nacherbe. The advantage. The assets of the first deceased are treated as a separate estate. The children's allowances are preserved. The disadvantage. The Vorerbe is restricted in disposing of the estate. Dispositions over land and gratuitous transfers from the Vorerbe assets are only possible with restrictions (§§ 2113 ff. BGB). In practice an exemption of the Vorerbe from individual restrictions (befreite Vorerbschaft) helps, which the testator can order in the will.

Legacy solution

The surviving spouse receives a legacy (such as a Niessbrauch (usufruct under § 1030 BGB — right to use and benefit from property without owning it) over the property, a right of residence, or a monetary legacy). The children become heirs directly. This way the children's allowances are used and the surviving partner is still provided for. The Niessbrauch can be particularly attractive in the case of a rented property: the spouse keeps the rental income, the children become owners and can plan long term.

Staggered lifetime gifts

Through timely Schenkung (lifetime gift, taxed under Erbschaftsteuergesetz) to the children, the allowances on a 10-year cycle can be used multiple times. A married couple can transfer 800.000 EUR tax-free to each child every ten years (400.000 EUR per parent). The combination of gift planning and will is usually significantly more tax-efficient than a pure Berliner Testament.

Erbvertrag with Pflichtteilsverzicht

Another alternative is the Erbvertrag (inheritance contract under §§ 2274 BGB, binding agreement between testator and heir) combined with a Pflichtteilsverzicht by the children. Both instruments must be notarised and create maximum legal certainty, including in relation to the binding effect. The Pflichtteilsverzicht can be granted against compensation (such as a partial payout during lifetime), which provides for the children early on and protects the liquidity at the time of death. For mid-market entrepreneurial families this variant is often the most legally robust solution.

Berliner Testament in blended families

For blended families the classic Berliner Testament is structurally problematic. Three central conflicts arise:

1. Unequal Pflichtteil claims: Biological children of the first deceased have a Pflichtteil claim. Stepchildren do not. At the first death only the biological children of the deceased parent can demand money.
2. Loss of the link to the first family: At the second death only the residual heirs of the surviving parent are taken into account. The binding effect does protect the originally designated residual heirs, but only if they are clearly named in the will. With vague wording ("our children") interpretation disputes arise between biological children and stepchildren.
3. Conflicts with new partners: If the surviving spouse remarries, the new partner has a statutory Pflichtteil claim against the assets that originally came from the first family.

The clean solution in blended-family constellations is the Trennungslösung with Vor- und Nacherbschaft or a notarised Erbvertrag that allocates the quotas clearly. Where the assets carry high emotional or strategic significance (family business, family home, heirlooms), legal counsel is practically indispensable.

The 5 most common mistakes in a Berliner Testament

1. No Pflichtteilsstrafklausel: Without a penalty clause the children can claim the Pflichtteil at the first death freely, without having to fear any disadvantages at the second death.
2. Tax consequences not considered: The wasted allowances can lead to five-figure tax burdens with larger estates. Anyone who plans early can avoid this. The fundamentals are in the guide on starting succession planning early.
3. Binding effect ignored: Many couples underestimate that the surviving partner is bound by the residual-heir arrangement. With blended families or changing circumstances this becomes a problem.
4. No rule for simultaneous death: What happens if both spouses die at the same time (accident)? Without a rule, statutory succession applies. A substitute-heir appointment should be included in the will.
5. Storage not regulated: Anyone who keeps the will at home risks that after death it cannot be found or is suppressed. The safest storage is official safekeeping with the Nachlassgericht (German probate court). Cost: 75 EUR one-off for indefinite safekeeping.

Frequently asked questions

What is a Berliner Testament in one sentence?

The Berliner Testament is a joint spousal will under § 2269 BGB in which the spouses appoint each other as sole heirs and their shared children as residual heirs. The children inherit only after the death of the second parent. Estimates from notarial practice suggest that more than 80 percent of all joint spousal wills in Germany are designed as a Berliner Testament because they secure the surviving partner to the maximum.

From what asset level is it worth reviewing alternatives?

Rule of thumb: from a combined estate of around 800.000 EUR per family. Where the assets of each spouse clearly exceed the children's allowance of 400.000 EUR per parent, the classic Berliner Testament regularly produces five-figure tax burdens that can be avoided through alternatives such as the Supervermächtnis, Vor- und Nacherbschaft or staggered Schenkungen.

Can a Berliner Testament be made without a notary?

Yes. A Berliner Testament can be made as a handwritten joint will. It must be written entirely by hand by one spouse and signed by both spouses (§ 2267 BGB). Notarisation is optional; we recommend it for complex asset situations. Further notes on drafting a will are in the guide on writing a will: instructions and template.

What does a Berliner Testament cost at the notary?

Notary fees follow the asset value (GNotKG). For assets of 500.000 EUR the cost is around 1.870 EUR net (double fee under GNotKG), plus VAT and a safekeeping fee. Details are in our guide on a will at the notary: cost and process.

Can a Berliner Testament be revoked?

During the lifetime of both spouses: yes, but only by notarised declaration addressed to the other spouse (§ 2271 para. 1 BGB). A unilateral revocation without the partner's knowledge is invalid. After the death of one spouse, revocation is no longer possible. Whether an existing will can be contested depends on the specific circumstances.

Does a Berliner Testament make sense for blended families?

As a rule, no. The Berliner Testament is tailored to the classic nuclear family. With blended families (children from previous relationships) problems arise. Stepchildren have no Pflichtteil claim. Biological children of the first deceased do. The binding effect can result in the children of the surviving partner being favoured. Individual solutions (Erbvertrag, Vor- und Nacherbschaft) are better suited here.

What happens to a Berliner Testament in case of divorce?

With the service of the divorce petition the Berliner Testament generally becomes invalid (§ 2077 BGB). The position is different only where it can be assumed that the testator would have made the disposition even in the event of divorce (§ 2077 para. 3 BGB). After divorce both spouses should set up a new will.

What happens if the surviving spouse remarries?

Without a remarriage clause, the Berliner Testament remains effective even after a remarriage. The original residual heirs (usually the shared children) remain heirs. The new spouse has, however, a statutory Pflichtteil claim against the estate of the surviving spouse. With a remarriage clause the spouses can determine in advance that the legal position of the survivor converts into a Vor- und Nacherbschaft on remarriage. This protects the family assets against claims from the second family.

Case from my practice: repairing a Berliner Testament after 28 years

An anonymised case shows how the Berliner Testament can be optimised after the fact, as long as both spouses are still alive. A Frankfurt couple, both 71 years old, came to me in 2024 for a second opinion. Their handwritten Berliner Testament from 1996 appointed each other as sole heirs and the two daughters as residual heirs — with no penalty clause, no remarriage clause and no exemption. Total assets around 2.3 million EUR: single-family home 850.000 EUR (owner-occupied), securities portfolio 950.000 EUR, life insurance policies 320.000 EUR, account balances 180.000 EUR.

We had identified three problems. First, at the first death the two daughters' allowance (400.000 EUR per parent each = 800.000 EUR vis-à-vis the first deceased) would have lapsed entirely. The daughters would have inherited only at the second death, against the full 2.3 million EUR estate, with only 2 × 400.000 EUR Freibetrag. Projected tax burden: around 215.000 EUR. Second, without a penalty clause one of the daughters (estranged in communication) could have demanded the Pflichtteil of around 145.000 EUR at the first death — an immediate liquidity problem for the widow. Third, without a remarriage clause, in the event of a new marriage by the survivor the family assets would have been at risk for the first family.

We implemented three levers. First, a notarised redrafting of the Berliner Testament with the Jastrow clause — the daughters who refrain from the Pflichtteil each receive a deferred legacy of 400.000 EUR (= Freibetrag) at the first death, falling due only after the death of the second spouse. The model confirmed at supreme-court level by the BFH (II R 34/20) applies. Second, a remarriage clause with conversion into a Vor- und Nacherbschaft. Third, an exemption clause that allows the survivor to adjust between the daughters — for example in the event of one child later requiring care.

The result on projection: the total tax burden at the second death falls from around 215.000 EUR to around 78.000 EUR. The Pflichtteil risk is neutralised. The first family is secured against remarriage. Notarial costs for the redrafting: around 3.200 EUR. ROI on the tax comparison: more than forty times the cost.

From my work with Frankfurt couples I know one thing. The greatest risk of the Berliner Testament is not the legal construction. It is the decade-long untouchability after the first death. As long as both partners are alive, repair is possible at any time. After that, the construct is fixed, and every euro of tax optimisation turns into a lost opportunity.

Conclusion

The Berliner Testament is a simple and time-tested solution for the mutual security of spouses. It does, however, have tax and inheritance-law disadvantages that weigh heavily with larger estates. Anyone who understands the Pflichtteil problem, the binding effect and the tax consequences can decide consciously whether the Berliner Testament is the right choice or whether alternatives such as the legacy solution, Vor- und Nacherbschaft or Supervermächtnis fit better. Choosing between Einheitslösung and Trennungslösung consciously and drafting the residual-heir position precisely avoids the most common pitfalls in the first draft.

Use the Erbschaftsteuer calculator to check the tax burden in your case. The inheritance navigator offers a checklist for your personal situation. If you are already dealing with an Erbfall, quick action counts.

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Do you have questions about the Berliner Testament? As a Steuerberater (German tax adviser) with a focus on wealth succession, I support you in finding the optimal arrangement. Book a no-obligation initial consultation.

Further detailed answers

• Testament 2026: types, basics, Pflichtteil, strategy — Main cluster guide
• Pflichtteilsstrafklauseln im Vergleich (2026) — Jastrow, standard, remarriage
• Writing a will: instructions and 7 mistakes — Handwritten form, legally robust
• A will at the notary: cost and process — GNotKG fees
• Contesting a will 2026: grounds, deadlines, chances — § 2082 BGB
• Topic hub on wills — Overall overview

External sources and statutes

• § 2269 BGB at dejure.org — Reciprocal appointment in spousal wills
• § 2270 BGB at dejure.org — Reciprocity of dispositions
• § 2271 BGB at dejure.org — Binding effect of reciprocal dispositions
• § 2287 BGB at dejure.org — Detrimental gifts
• § 2303 BGB at dejure.org — Pflichtteil claim
• § 2325 BGB at dejure.org — Pflichtteilsergänzung for gifts
• § 2331a BGB at dejure.org — Deferment of the Pflichtteil
• § 13 para. 1 no. 4b ErbStG at gesetze-im-internet.de — Family-home tax exemption
• § 16 ErbStG at gesetze-im-internet.de — Personal allowances
• BFH, judgment of 11.10.2023 — II R 34/20 — Jastrow clause: deferred legacy in tax law
• KG Berlin, decision of 04.12.2015 — 6 W 87/15 — Reciprocity and binding effect in the joint will
• Thüringer OLG, decision of 25.03.2024 — 6 W 22/24 — Remarriage clause ends the binding effect