Disinheriting a Spouse 2026: Pflichtteil and Strategy

Can you disinherit a spouse at all?

In principle, yes. Under § 1938 BGB you can exclude any statutory heir from succession by testament or contract of inheritance — including your spouse. But two important caveats apply:

1. The Pflichtteil survives (§ 2303 (2) BGB): even where the spouse is expressly disinherited, they are entitled to 50 per cent of their statutory share of the estate as the Pflichtteil.
2. An "honest" disinheritance without a Pflichtteil is only available in special cases: Pflichtteilsentziehung under § 2333 BGB, or a Pflichtteilsverzicht.

Disinheritance can be ordered expressly ("My wife Sabine M. is disinherited.") or implicitly — by appointing other persons as heirs in the testament so that nothing is left for the spouse. Both forms have the same legal weight. More on the general requirements is in the guide on Enterben with Pflichtteil and consequences.

Important: the challenge option

If a joint testament of a married couple is not amended after their separation, the disinherited spouse may, in certain circumstances, be able to challenge it — for example where the testator did not anticipate a later divorce when drafting. The rule of thumb: revisit the testament at every change of life circumstances.

Spousal Pflichtteil: how high is it really?

The Pflichtteil amounts to 50 per cent of the statutory share of the estate (§ 2303 BGB). The size of the statutory share depends on two factors: the matrimonial property regime and the number of other heirs. Anyone without a testamentary disposition should first read up on the statutory order of succession without a testament.

Pflichtteil under Zugewinngemeinschaft (the default case)

Under the Zugewinngemeinschaft (community of accrued gains, the default matrimonial property regime in Germany) — the statutory regime without a marriage contract — the spouse's statutory share is increased by a flat 1/4 under § 1371 (1) BGB. That is on top of the normal share and compensates for the equalisation of accrued gains not carried out individually.

Pflichtteil under Guetertrennung

This is where the biggest lever shows. Under Guetertrennung (separation of property under German matrimonial law) the Pflichtteil drops with every additional child, because the spouse and the children are treated equally under succession law (§ 1931 (4) BGB).

Worked example: estate of EUR 1,500,000, married couple with three children.

The difference of EUR 187,500 between Zugewinngemeinschaft and Guetertrennung shows why the matrimonial property regime is by far the most important strategic lever. The detail of the Pflichtteil calculation is explained in detail in the guide on the Pflichtteil for children and spouses.

With an estate of EUR 1,500,000 and three children, simply switching the matrimonial property regime cuts the spousal Pflichtteil from 25 per cent to 12.5 per cent — that is EUR 187,500 saved without any further structuring.

Switching matrimonial property regime: a strategic option

A switch from Zugewinngemeinschaft to Guetertrennung is possible at any time via marriage contract. But that means the accrued gain to date has to be equalised. In practice this is often complex because the equalisation of accrued gains actually shifts assets — which can trigger Schenkungsteuer if it happens without due cause.

Alternative: modified Zugewinngemeinschaft. Here the spouses agree that the equalisation only takes place in case of divorce and not on death. This removes the flat uplift of the spousal share under § 1371 BGB — and the Pflichtteil falls automatically.

In my advisory practice the modified Zugewinngemeinschaft is often the more elegant solution. It keeps the advantages of Zugewinngemeinschaft in the event of divorce (no forced lifetime asset shift) and at the same time reduces the spousal Pflichtteil.

Berliner Testament and Pflichtteilsstrafklauseln

The Berliner Testament is the most widely used structure between spouses: both appoint each other as sole heirs and the children only inherit after the death of the surviving spouse. More on the construction and its pitfalls in the Berliner Testament guide with template and Pflichtteil.

That, however, does not solve the problem of disinheriting the spouse — because a Berliner Testament does exactly the opposite: it makes the spouse the heir. Berliner Testamente are aimed at couples who want to secure each other, not at testators wanting to exclude their spouse.

The Federal Court of Justice (BGH) on the reach of Pflichtteilsentziehung against a spouse

In its order BGH of 12.02.2014 — XII ZB 607/12 on the analogous question of forfeiture of elderly-parent maintenance, the Federal Court of Justice (Bundesgerichtshof, BGH) made it clear: silence or break of contact regularly constitutes misconduct — but not a serious misconduct within the meaning of the statutory forfeiture grounds. The case law applies that valuation 1:1 to § 2333 BGB. Translated for the disinheritance of a spouse: a separation, a moving out or even a bitter dispute in the run-up to a divorce do not meet the requirements of § 2333 BGB. There has to be a concrete serious misconduct with a criminal-law dimension.

Higher Regional Court Zweibruecken on the Pflichtteilsstrafklausel (2025)

In its decision 8 W 56/24 of 09.07.2025 the Higher Regional Court Zweibruecken clarified: the Pflichtteilsstrafklausel in a Berliner Testament only bites when the Pflichtteil is actually asserted "against the will" of the testator. Mere letters of clarification or open-ended enquiries are not enough. The exact wording of the clause is decisive.

A second decision of the same court (8 W 41/23 of 27.05.2024) shows: where a child is disinherited together with a Pflichtteilsstrafklausel, the testator has to spell out clearly what happens to the share of the "outcast" child. Otherwise disputes about interpretation between the remaining heirs are inevitable.

The practical lesson: a Pflichtteilsstrafklausel is no autopilot. It has to be drafted precisely — otherwise interpreting it costs more than it saves.

Pflichtteilsentziehung under § 2333 BGB

A full disinheritance without any Pflichtteil is only possible in extreme exceptions. Under § 2333 BGB (see statutory text at gesetze-im-internet.de), the following grounds qualify:

1. Attempts on life: trying to kill the testator or a person close to them
2. Serious bodily harm or maltreatment
3. Severe intentional crime (e.g. rape, aggravated theft)
4. Malicious breach of statutory maintenance duties
5. Final conviction to at least one year of imprisonment without suspension for an intentional crime

Important: the ground has to have already occurred at the time of the testamentary disposition and to be named concretely in the testament. A general phrase ("for serious misconduct") is not enough. In a dispute, the burden of proof lies with the heir.

In my advisory practice I see this constellation rarely — it is aimed at high-conflict families, not at normal marital problems or amicable separations.

What does NOT count as a ground for forfeiture?

• Separation or intention to divorce (§ 1933 BGB already covers that)
• Quarrels, break of contact, personal differences
• Infidelity (even where the affair is proven)
• "Burning through the assets" by the spouse

The requirements for other Pflichtteil-entitled persons are set out in the article Disinheriting a child without Pflichtteil 2026.

Lifetime Pflichtteilsverzicht

The cleanest solution is the notarised Pflichtteilsverzicht under § 2346 BGB. One or both spouses waive their Pflichtteil during their lifetime, usually in return for a settlement.

Advantages:

• Legally secure, lasting effect
• Negotiable (against settlement, right of residence, maintenance)
• Plannable well in advance
• No later challenge risks

Disadvantages:

• Both sides have to cooperate — there is no enforcement option
• Notary fees (depending on the value of the assets)
• Cannot be revoked unilaterally

In my practice the Pflichtteilsverzicht is often the right solution for blended families, late marriages or where there are clear wealth differences between the spouses. The classic example: an entrepreneur with adult children from a first marriage remarries — and both sides want clear conditions for the day things go wrong.

Separation and divorce petition: § 1933 BGB

Many people do not realise: once the requirements for divorce are met AND the testator has filed the divorce petition or consented to it, the statutory inheritance right of the spouse falls away (§ 1933 BGB) — and so does the Pflichtteil. The not-yet-divorced spouse is then effectively out of the succession picture.

Practical consequence: during an ongoing separation, the testament should be reviewed without delay. If both partners have not yet decided to divorce while the testator already wants to disinherit, a staggered construction makes sense: one testament for the transition period and a clear rule for the case where the divorce petition is filed.

Strategic combinations 2026

In advisory work I combine these instruments depending on the situation:

Which construction fits depends on the specific wealth and family structure. Off-the-shelf solutions do not work for the spousal Pflichtteil — the interaction of matrimonial law, succession law and tax law is too complex for that.

Frequently asked questions

Can I completely disinherit my spouse?

No. Even with express disinheritance your spouse is entitled to the Pflichtteil — 50 per cent of their statutory share. In numbers: under Zugewinngemeinschaft with children that is at least 1/4 of the estate. Only under the tight requirements of § 2333 BGB (serious crimes, attempts on life) does the Pflichtteil also fall away.

How high is the spousal Pflichtteil under Zugewinngemeinschaft?

For a married couple with children and Zugewinngemeinschaft the spousal Pflichtteil is 1/4 of the estate. With an estate of EUR 1 million that is EUR 250,000. Without children the Pflichtteil rises to 3/8 (if the parents are alive) or 1/2 (without other relatives).

What happens to the Pflichtteil under Guetertrennung?

Under Guetertrennung the Pflichtteil drops with the number of children: with one child 1/4, with two children 1/6, with three or more children only 1/8. That makes Guetertrennung a powerful lever — provided there are three or more children.

Does my spouse lose the right of inheritance on separation?

Yes, when the requirements for divorce are met AND you as the testator have filed the divorce petition or consented to it (§ 1933 BGB). Until then the statutory right of inheritance and the Pflichtteil remain. Mere physical separation without a divorce petition is not enough.

Can I reduce my spouse's Pflichtteil by making Schenkungen?

Only to a limited extent. Schenkungen made within the last ten years before the Erbfall (death event) are added proportionally to the estate (Pflichtteilsergaenzung under § 2325 BGB). For Schenkungen between spouses, the ten-year period only starts running with the dissolution of the marriage — an important trap that many people overlook.

What does a Pflichtteilsverzicht at the notary cost?

With the Pflichtteilsverzicht (§ 2346 BGB) the spouse notarially waives the Pflichtteil — usually against a settlement. The notary fees follow the case value (as a rule 50 per cent of the Pflichtteil value). For an expected Pflichtteil of EUR 250,000 notary fees are around EUR 1,500 to EUR 2,000 — an investment that often pays for itself many times over with six- and seven-figure estates.

Does the Berliner Testament help in disinheriting the spouse?

No, the Berliner Testament makes exactly the opposite move and appoints the spouse as sole heir. It is suited to couples who want to secure each other. If you want to disinherit your spouse, the Berliner Testament is the wrong instrument — you need a single testament with a clear disinheritance clause and ideally a Pflichtteilsverzicht.

Conclusion and advice

Disinheriting a spouse fully is practically impossible in Germany — the compulsory-share regime is a hard constitutional line. Realistically the question is minimising the Pflichtteil: through the choice of matrimonial property regime, intelligent Schenkung strategies (mindful of the ten-year window), a Pflichtteilsverzicht or, in tightly defined cases, Pflichtteilsentziehung under § 2333 BGB.

In my advisory practice the pattern is clear: those who plan early and combine the instruments can reduce the spousal share substantially — without confrontation, without challenge risks and with long-term legal certainty. The construction has to fit the life situation though — and it has to be reviewed at every significant change in circumstance (separation, new children, leap in wealth).

You are thinking about how to structure your estate — with or without spousal participation? I can help you with the individual strategy: matrimonial property regime, testament, Pflichtteilsverzicht and Schenkung planning in one coherent concept.

Book a first meeting →