Compulsory-Share Penalty Clauses Compared (2026)

What is a Pflichtteilsstrafklausel?

A Pflichtteilsstrafklausel is a provision in a joint spousal Testament (§ 2269 BGB) that sanctions a child claiming the Pflichtteil with a worse position on the second death event. The Pflichtteil claim itself cannot be excluded — it is guaranteed by § 2303 BGB and amounts to half of the statutory share of inheritance. What the clause can do: make the claim unattractive.

Why a penalty clause at all?

In the Berliner Testament the surviving spouse becomes sole heir. The children formally come away empty-handed and therefore have an immediately due Pflichtteil claim in money against the surviving parent. With an estate of 600,000 euros and two children, 75,000 euros per child can quickly accumulate, which the surviving partner has to pay out within months — often from illiquid assets such as the family home.

A penalty clause shifts the incentives: anyone who claims at the first death event risks a considerably smaller share at the second death event. This only works if the later final inheritance is large enough to justify the waiver at the first death event.

Legal effect of the penalty clause

§ 2269 BGB is the interpretation rule for the unity solution in the Berliner Testament — the actual binding effect of interdependent designations of final heirs follows from § 2270 (2) BGB (presumption of interdependence) in conjunction with § 2271 (2) BGB (binding effect after the death of the first to pass away). A penalty clause is a conditional designation of a final heir: the full final-heir position is placed under the resolutive condition that the child does not claim the Pflichtteil on the first death event. If the child breaches this condition, it falls back to the Pflichtteil — also in the second inheritance.

In my advisory practice I see that the simple penalty clause almost never deters in fractured families — today's Pflichtteil is concrete, tomorrow's final inheritance is abstract and dependent on the surviving spouse's spending behaviour. The clause only reliably unfolds its effect when the final inheritance lies several times above the Pflichtteil claimed today.

The Higher Regional Court of Zweibruecken clarified in its decision of 9 July 2025 (case no. 8 W 56/24): asserting the Pflichtteil "against the will" of the surviving spouse does not require an outwardly documented refusal on the heir's part. It is sufficient that the Pflichtteilsberechtigter (entitled to the compulsory share) approaches the heir unilaterally and in a confrontational manner — even if the heir recognises and pays out the claim. The penalty clause therefore takes effect already on the first serious demand.

The three protective clauses compared

The following table compares the three protective clauses most common in practice. They pursue different aims and complement each other as building blocks — in many designs two or all three are combined.

Standard Pflichtteilsstrafklausel: simple and widely used

The simple penalty clause is the most frequently used variant in handwritten Berliner Testamente. It works by the principle "whoever demands, loses".

Model wording

"If one of our children demands the Pflichtteil on the death of the first to pass away, it shall also receive only the Pflichtteil on the death of the last to pass away. The same applies to its descendants."

The addition "The same applies to its descendants" is important: without it, grandchildren of the child who demanded the Pflichtteil could again access the full final-heir share, which would largely devalue the clause.

When it works — and when it doesn't

The standard clause only works if the later final inheritance is larger than the Pflichtteil claimed today. With an overall estate of 800,000 euros it may work. In a fractured family relationship where the child anyway maintains no friendly contact with the surviving parent, the deterrence is weak — today's Pflichtteil is concrete, tomorrow's final inheritance is uncertain.

Weaknesses of the simple clause

Three problems regularly arise:

1. Spending risk: the surviving parent can spend or give away the wealth during their lifetime. The final inheritance shrinks, the deterrent effect evaporates.
2. Pflichtteilsergaenzung (supplementary compulsory share): gifts to third parties are admittedly clawed back proportionally under § 2325 BGB (see the details on the 10-year period for Schenkungen (gifts under German law)) — but this only protects to a limited extent.
3. No tax optimisation: the simple clause only addresses the liquidity problem, not the Erbschaftsteuer trap of the Berliner Testament.

Jastrow'sche Klausel: the sharpened penalty legacy

The Jastrow'sche Klausel — named after the notary Hermann Jastrow, who developed it around 1900 — is the most effective variant when protection of the surviving spouse is the top priority. It combines the penalty threat with a deferred legacy in favour of the loyal children.

How it works

The children who do not claim the Pflichtteil on the first death event receive a legacy that only becomes due on the death of the surviving spouse. The child who demands the Pflichtteil loses this legacy. The final-heir share of the loyal children is thereby additionally increased, while the demanding child is doubly disadvantaged.

Model wording

"If one of our children demands the Pflichtteil on the death of the first to pass away, it shall also receive only the Pflichtteil on the death of the last to pass away. To the other children, who do not demand the Pflichtteil, we bequeath a legacy from the estate of the first to pass away in the amount of their statutory share of inheritance. This legacy only becomes due for payment on the death of the last to pass away."

Tax advantage

This is where the actual charm of the Jastrow'sche Klausel lies. The legacy is a taxable acquisition by the children from the first to pass away, due in the first death event — even if the payout happens later. The children thereby already use their Freibetrag of 400,000 euros per parent (§ 16 Abs. 1 Nr. 2 ErbStG) in the first death event. In the second death event, the legacy obligation reduces the estate value. Effect: the overall tax burden drops significantly.

Worked example: married couple with overall wealth of 1,200,000 euros (600,000 euros each), two children.

• Without Jastrow: first death event tax-free (Ehegattenfreibetrag of 500,000 euros plus Versorgungsfreibetrag, the pension allowance). Second death event: 1,200,000 euros to two children, 200,000 euros each above Freibetrag, Erbschaftsteuer around 22,000 euros per child = 44,000 euros total.
• With Jastrow: in the first death event, each child receives a legacy of 150,000 euros — tax-free (within the 400,000-euro Freibetrag). In the second death event, the legacy (300,000 euros) reduces the estate to 900,000 euros. Taxable acquisition per child: 50,000 euros, tax around 3,500 euros = 7,000 euros total.
• Saving: around 37,000 euros.

A list of all Freibetraege and tax rates can be found in the Inheritance Tax Table 2026.

The Federal Fiscal Court (Bundesfinanzhof, BFH) clarified the tax treatment of the Jastrow'sche Klausel at the highest judicial level in its judgment of 11 October 2023 (case no. II R 34/20): the deferred legacy is not yet due at the first death event — the surviving spouse therefore cannot deduct it as an estate liability. The child taxes the acquisition only at the death of the surviving spouse — and can, if it is also an heir, then deduct the legacy as an estate liability. Practical consequence: the tax optimisation only takes effect with a clean structuring of the due-date.

Risks and contestability potential

The Jastrow'sche Klausel is not without pitfalls. Because it formally burdens the position of the surviving spouse with a legacy obligation, the survivor can check whether to disclaim the inheritance under § 2306 BGB and instead claim its own Pflichtteil — a construct rarely used in practice but legally possible. In addition, the clause is complex to formulate and should not be adopted into a handwritten Testament without notarial advice. Anyone drafting their own Testament template should follow the hints in the guide Writing a Testament: instructions and template.

Wiederverheiratungsklausel: protection from the second family

The Wiederverheiratungsklausel addresses a different risk than the two penalty clauses above. The protective aim here is the outflow of wealth into a second family if the surviving spouse remarries — children claiming the Pflichtteil are not the addressees of this clause.

The risk without the clause

If the surviving partner remarries, the new spouse has statutory Pflichtteil rights to the estate of the survivor. In the extreme case, a substantial part of the original family wealth flows to the second family — the original final heirs see less.

Model wording

"If the surviving spouse remarries, his or her position as full heir is retrospectively converted into that of an exempted prior heir (§ 2136 BGB). Subsequent heirs are the final heirs of this Testament. The subsequent inheritance arises with the marriage."

Effect

When remarriage takes effect, the assets inherited from the first to pass away legally become separate special assets (prior inheritance). The survivor can largely freely dispose of them (exempted prior heir, § 2136 BGB) but can no longer bequeath them to the new spouse or stepchildren. The original final heirs are secured as subsequent heirs.

The Thuringian Higher Regional Court confirmed in its decision of 25 March 2024 (case no. 6 W 22/24): if spouses agree a Wiederverheiratungsklausel under which the subsequent inheritance arises with the remarriage, the surviving spouse is freed from the binding effect of the joint Testament on remarriage. From that point on, he can make his own dispositions over his remaining wealth — the wealth originating from the first to pass away remains, however, reserved as a prior inheritance for the designated subsequent heirs.

Practical relevance

The clause is particularly relevant in patchwork families, with high wealth or with a big age difference between the spouses. Anyone who underestimates the risk should look at the statistics: according to the Federal Statistical Office, in 2024 every fourth newly contracted marriage in Germany was a second marriage for at least one partner. The statutory order of succession without a Testament often delivers results in such constellations that the first family would not have wanted.

Practice case: patchwork family with Jastrow and Wiederverheiratungsklausel

An anonymised case from my advisory practice shows how the clauses can be combined. A 64-year-old couple from the Frankfurt area (wealth around 1.8 million EUR, a single-family home worth 750,000 EUR plus a securities portfolio of 850,000 EUR plus equity of 200,000 EUR from the sale of an engineering practice) came to me in 2024 with a ten-year-old handwritten Berliner Testament for a second opinion. Each spouse had a child from a previous marriage and a joint child. The two children from the previous marriages had a distant relationship with the stepparent generation. The Testament only contained a simple penalty clause.

We identified three risks. First the liquidity risk: on the death of one of the spouses, the two stepchildren would have Pflichtteil claims of around 75,000 EUR each — the simple penalty clause would barely have deterred them, because they could not anyway count on a friendly final inheritance. Second the tax risk: in the second death event, 1.8 million EUR would have been distributed to three children, around 200,000 EUR each above the Freibetrag, Erbschaftsteuer around 65,000 EUR in total. Third the remarriage risk: a new marriage of the surviving partner would have endangered the entire wealth for the original family.

We implemented three levers. A notarial new version with a Jastrow'sche Klausel meant that the two stepchildren each received a legacy of 200,000 EUR in the first death event tax-free — within the 400,000 EUR Freibetrag. A Wiederverheiratungsklausel secured the wealth for the case of a new relationship. And a release clause left the survivor the possibility, in an emergency, to reverse individual gifts.

The result after projection: the overall Erbschaftsteuer in the second death event falls from around 65,000 EUR to around 18,000 EUR. The liquidity risk is significantly defused — the two stepchildren have an immediate economic incentive to stay quiet on the first death event. And the original family remains protected in the case of remarriage. The notary costs for the new version came to around 2,400 EUR — against the tax and liquidity savings, a fraction.

In advisory meetings I regularly encounter the assumption that a handwritten Berliner Testament is sufficient, "we love each other anyway". As soon as patchwork, larger wealth or real estate enter the picture, the balance tips: a one-sentence penalty clause only shifts the problems into the second death event without solving them. A clean combination of several clauses is usually the only viable answer.

Which clause fits which family situation?

The right choice of clause depends on three factors: wealth size, family constellation and conflict potential with the children.

Notarial vs. handwritten execution

Standard penalty clauses can be incorporated without difficulty into a handwritten Testament. With Jastrow'sche Klauseln and Wiederverheiratungsklauseln, notarial certification is strongly recommended because wording errors can have significant consequences. Typical notary costs for a Berliner Testament with protective clauses are around 1,500 to 2,000 euros for wealth of 500,000 euros — details in the guide Testament before a notary: costs and procedure.

When the Testament is later attacked

Penalty clauses are regularly contested in inheritance-law practice — usually with the argument that the testator did not foresee the consequences or that the clause violates good morals (§ 138 BGB). Chances of success and procedural course of such a challenge are described in detail in the guide Contesting a Testament: grounds and deadlines.

Frequently asked questions

How high is the Pflichtteil under a Berliner Testament?

The Pflichtteil amounts under § 2303 BGB to half of the statutory share of inheritance. With an estate of 600,000 euros, spouse and two children (Zugewinngemeinschaft, the default German matrimonial property regime), the statutory share of each child is 1/4, the Pflichtteil therefore 1/8 = 75,000 euros. Per child this amount is immediately due and payable in money.

Does the Pflichtteilsstrafklausel apply with only one child?

Yes. With only one child the penalty clause can also be sensible — namely if you want to prevent the Pflichtteil claim in the first death event. However, the deterrent effect is weaker because the child anyway becomes sole heir in the second death event and therefore always gets more than just the Pflichtteil. The penalty clause then reduces the acquisition to the (higher) Pflichtteil in the second inheritance — the economic difference depends on the scope of wealth.

Does a Pflichtteilsstrafklausel prevent the Pflichtteil claim?

No. The Pflichtteil claim under § 2303 BGB is statutorily guaranteed and cannot be excluded by any clause. The penalty clause merely makes the claim unattractive by linking the later heir position to the condition of not claiming the Pflichtteil in the first death event.

What happens if the child demands the Pflichtteil but does not receive it?

The demand is decisive, not the success. As soon as the child seriously asserts its Pflichtteil, the penalty clause takes effect — even if the payout later fails for liquidity reasons or is only partial. For this reason children should always check, before a Pflichtteil claim, whether the short-term advantage outweighs the later loss.

Is the Jastrow'sche Klausel also effective in handwritten form?

In principle yes. You can adopt the Jastrow'sche Klausel into a joint Testament in handwritten form under the formal requirements of § 2267 BGB. Because of the complexity — particularly the inheritance-tax effect and the precise legacy wording — notarial certification is strongly recommended in practice.

Can the surviving spouse change the penalty clause later?

No. After the death of the first to pass away, the Berliner Testament develops binding effect (§ 2271 BGB). Designations of final heirs and penalty clauses can no longer be changed unilaterally. An exception exists only if the Testament contains an express release clause or if the surviving spouse disclaims the inheritance and claims his or her own Pflichtteil.

What happens to the final inheritance on remarriage without a Wiederverheiratungsklausel?

Without an express clause, the Berliner Testament remains effective. The original final heirs (usually the joint children) remain heirs of the surviving spouse. The new spouse, however, has his or her own Pflichtteil rights on the estate of the survivor — the family wealth can thereby be significantly reduced.

Conclusion: combine clauses appropriately rather than copy them blindly

Choosing the right protective clause in the Berliner Testament is no standard kit but an individual judgement. The standard penalty clause is the minimum protection, the Jastrow'sche Klausel the tax-optimised premium route, the Wiederverheiratungsklausel the indispensable building block in patchwork or age-difference constellations. In advisory practice the clauses are often combined — for example Jastrow plus remarriage plus release option.

Anyone who has an existing Berliner Testament should check at least every five years whether the clauses it contains still fit the current wealth and family situation. Changes such as increases in real-estate value, births, divorces or new life partners often require adjustments — as long as both spouses are still alive.

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Do you want to have checked which protective clauses fit your family and wealth situation? As a Steuerberater specialising in wealth succession, I analyse with you the tax and inheritance-law consequences of your Testament design. Arrange a non-binding initial consultation — by video call or in person in Liederbach near Frankfurt.

Further detail answers

• Testament 2026: types, basics, Pflichtteil, strategy — main guide for the cluster
• Berliner Testament 2026: template, Pflichtteil, errors — parent topic with template and basics
• Writing a Testament: instructions and 7 errors — formulating clauses with legal certainty
• Testament before a notary: costs and procedure — notarial Berliner Testament
• Topic hub Testament — overall overview

External sources and statutory texts

• § 2269 BGB at dejure.org — Mutual designation and designation of final heirs in the joint spousal Testament
• § 2271 BGB at dejure.org — Binding effect of interdependent dispositions
• § 2303 BGB at dejure.org — Pflichtteil claim and those entitled to the Pflichtteil
• § 2306 BGB at dejure.org — Restrictions and burdens on those entitled to the Pflichtteil
• § 2325 BGB at dejure.org — Pflichtteil supplementation for gifts
• § 16 ErbStG at gesetze-im-internet.de — Personal allowances in inheritance-tax law
• BFH, judgment of 11 October 2023 — II R 34/20 — Highest-court clarification on the tax treatment of the Jastrow'sche Klausel
• OLG Zweibruecken, decision of 9 July 2025 — 8 W 56/24 — Pflichtteilsstrafklausel: interpretation of the term "against the will"
• Thuringian OLG, decision of 25 March 2024 — 6 W 22/24 — Wiederverheiratungsklausel ends the binding effect of the joint Testament
• OLG Frankfurt, decision of 21 February 2023 — 21 W 104/22 — Pflichtteilsstrafklausel requires actual outflow of funds