Marital agreement with separation of property: notary costs and effects

The example case: a professional, a marriage, a company of his own

Jonas is a professional footballer, Lea is employed. They married four years ago without a marital agreement. They therefore live under the matrimonial property regime of the community of accrued gains, because spouses live under this regime "if they do not agree otherwise by marital agreement" (§ 1363(1) BGB, German Civil Code).

Assumptions, all fictitious and simplified:

• Jonas receives his salary from the club. His advertising income runs through his own marketing company, in which he holds all shares.
• Today Jonas owns EUR 1,100,000, of which EUR 300,000 is in the company shares, and has EUR 200,000 in liabilities. Lea owns EUR 100,000 and has no liabilities.
• At the wedding Jonas had EUR 100,000 and Lea EUR 20,000, in each case after deducting liabilities. During the marriage Lea received a gift of EUR 30,000 from her parents. Under the circumstances, this gift is not to be treated as income.
• The couple have one child together. Both live in Germany, and German matrimonial property law applies. The figures are stated without valuation issues and without additions under § 1375(2) BGB.

Jonas wants future increases in the value of his company to no longer fall into an equalisation of accrued gains. Both ask: Is this still possible now, what does it cost, and what follows for Lea, for a separation and for inheritance? An overview of further wealth topics in professional sport can be found in the article on the wealth traps for professional athletes.

Takeaway: Before any meeting, write down what you both own and owe today and what existed at the wedding. These figures determine the notary costs and any equalisation.

Is a marital agreement with separation of property also possible after the wedding?

Yes. Spouses can regulate their matrimonial property relations by agreement, "in particular also after entering into the marriage, cancel or change the matrimonial property regime" (§ 1408(1) BGB).

• Form: The marital agreement must be "concluded in the simultaneous presence of both parties for recording by a notary" (§ 1410 BGB). Whether one party can be represented, this wording does not say. Jonas and Lea are planning a joint appointment with the notary.
• Effect: If the spouses exclude or cancel the statutory matrimonial property regime, separation of property takes effect, "unless the marital agreement provides otherwise" (§ 1414 sentence 1 BGB).

For couples before the wedding: the statutes read here speak of spouses. This article does not assess from when an agreement concluded before the wedding takes effect. This question is listed among the open review questions at the end.

Takeaway: A change after the wedding is expressly provided for in § 1408(1) BGB. The requirement is recording by a notary in the simultaneous presence of both parties.

What does a marital agreement with separation of property cost at the notary?

Notary costs follow a fixed scheme. The fees depend on the transaction value (Geschäftswert), and they are charged under the schedule of fees in Annex 1 to the GNotKG (§ 3 GNotKG).

Step 1, transaction value: When a marital agreement within the meaning of § 1408 BGB is notarised, the transaction value is "the sum of the values of the current assets of both spouses" (§ 100(1) GNotKG). This applies if the agreement is not limited to arrangements on pension rights adjustment. In addition:

• Liabilities are deducted up to half of the relevant value, and only from the assets of the spouse who owes them.
• If the agreement concerns the assets of only one spouse, only that spouse's assets count.
• If it concerns only certain assets or certain matrimonial property claims, their value counts, but at most the value under subsection 1 (subsection 2).
• Assets that do not yet belong to the estate count at 30 percent if they are specifically identified in the marital agreement (subsection 3).

Step 2, fee rate: For the notarisation procedure, no. 21100 of the schedule of fees provides for a 2.0 fee, at least EUR 120, under Table B.

Step 3, Table B: The values are set out in § 34(2) GNotKG. The full fee (1.0) starts at EUR 15 for values up to EUR 500 and increases for each value step begun. It is rounded to the nearest cent (§ 34(4)).

Calculation for Jonas and Lea

Transaction value: Jonas's EUR 1,100,000 minus EUR 200,000 in liabilities (less than half of his assets) gives EUR 900,000. Lea's EUR 100,000 is added. Together that is EUR 1,000,000.

The 2.0 fee under no. 21100 is therefore EUR 3,470. VAT and the notary's expenses come on top; they are not quantified here. The official fee table in Annex 2 was not used for this calculation; the calculation follows § 34(2) GNotKG alone. Family law advice from a lawyer is a separate service with its own fee and is not included in this calculation.

Variant: If the agreement concerns only the company shares of EUR 300,000, § 100(2) GNotKG could apply. The 1.0 fee would then be EUR 635 (EUR 435 plus 4 steps begun of EUR 30,000 each at EUR 50), and the 2.0 fee EUR 1,270. Whether subsection 2 applies depends on the exact content of the agreement and should be clarified with the notary.

Not answered here are the costs if further declarations are notarised in the same deed, if you later return to the community of accrued gains, or if future bonuses are to be valued under § 100(3) GNotKG.

Takeaway: The fee depends in principle on the assets of both partners. Liabilities count only up to half of the relevant value, and for an agreement on certain assets their value may be decisive. Ask the notary in advance to tell you the transaction value applied.

Florian Enders on the costs of a marital agreement with separation of property

What happens to the accrued gains so far?

With the marital agreement, Jonas and Lea's community of accrued gains ends during their lifetime. If the matrimonial property regime ends other than by death, the accrued gains are equalised under §§ 1373 to 1390 BGB (§ 1372 BGB).

• Accrued gains are the amount by which the final assets exceed the initial assets (§ 1373 BGB).
• Initial assets are the assets after deducting liabilities when the matrimonial property regime begins. Inheritances, gifts and endowments received afterwards are added after deducting liabilities, unless under the circumstances they are to be treated as income (§ 1374 BGB).
• Final assets are the assets after deducting liabilities when the matrimonial property regime ends. Certain gratuitous dispositions, squandering and acts intended to disadvantage the other spouse are added. This does not apply if the reduction occurred at least ten years before the regime ended or if the other spouse consented to the disposition or the squandering (§ 1375 BGB).
• Equalisation claim: If the accrued gains of one spouse exceed those of the other, the other is entitled to "half of the surplus". The claim is capped by the net assets existing when the regime ends, increased by the amount to be added in the cases of § 1375(2) sentence 1. The claim arises when the matrimonial property regime ends (§ 1378 BGB).

The cap under § 1378(2) BGB is not reached, because Jonas has net assets of EUR 900,000. Lea's gift does not increase her accrued gains, because it is added to her initial assets.

Tax: If the community of accrued gains ends other than by death, "the equalisation claim (§ 1378 of the Civil Code) does not form part of the acquisition within the meaning of §§ 3 and 7" (§ 5(2) ErbStG, German Inheritance and Gift Tax Act). Which limits and risks need to be observed, for example in the case of a deferral or an equalisation with assets in kind, is explained in the article on the Güterstandsschaukel (matrimonial property regime swing).

Waiver: If the equalisation is not actually to be paid, the question of a waiver arises. § 1378(3) sentence 3 BGB only provides that, before the regime ends, no spouse can undertake to dispose of the claim. Whether a claim that has already arisen can be waived, and with what civil law and gift tax consequences, this article does not assess.

Takeaway: A separation of property agreed after the wedding ends the community of accrued gains. If one spouse's accrued gains exceed the other's, an equalisation claim arises. Calculate it before the appointment, not afterwards.

What changes in the event of divorce?

If Jonas and Lea remain in the community of accrued gains and later divorce, the accrued gains are equalised in the same way: if the accrued gains of one exceed those of the other, the other is entitled to half of the surplus, capped under § 1378(2) BGB. This article does not assess which calculation date applies in a divorce.

A common misconception is that half of the assets must be paid. Using today's figures from the example, half of Jonas's net assets would be EUR 450,000 and half of his increase during the marriage EUR 400,000. The statutory claim, however, is EUR 375,000, because what counts is half of the surplus of his accrued gains over Lea's accrued gains. It falls further the more accrued gains Lea also achieves and the more of Jonas's assets come from inheritances or gifts that are added to his initial assets under § 1374(2) BGB.

After the switch to separation of property, no equalisation of accrued gains arises for the subsequent period, because equalisation is linked to the end of the community of accrued gains (§ 1363(2) BGB). Maintenance and pension rights adjustment are not covered in this article.

Takeaway: In the event of separation, what counts is not the assets but the difference between the two accrued gains. Evidence of initial assets is therefore worth real money.

Separation of property or modified community of accrued gains?

Because spouses can also change the matrimonial property regime (§ 1408(1) BGB), it does not have to be full separation of property. The aim of a modified community of accrued gains is to keep the regime and exclude equalisation only for individual assets, such as the company shares, or only for the case of divorce.

Whether this works is open: under § 1414 sentence 2 BGB, separation of property also takes effect "if equalisation of accrued gains is excluded". Whether a merely partial exclusion preserves the community of accrued gains and thus the inheritance quarter under § 1371(1) BGB, the wording does not answer.

The limit of public policy: "A legal transaction which is contrary to public policy is void" (§ 138(1) BGB). When a marital agreement reaches this limit, the wording does not say. The Federal Court of Justice regularly does not consider an exclusion of the statutory matrimonial property regime in itself to be contrary to public policy, because equalisation of accrued gains is the area most open to contractual arrangement in a marital agreement. However, an agreement may prove to be contrary to public policy as a whole in an overall assessment if the interaction of all its provisions is evidently aimed at unilaterally disadvantaging one spouse (BGH, judgment of 21.11.2012, XII ZR 48/11). In a later decision, the senate refers to a recognised legitimate interest in protecting the assets of an independent business from a potentially existence-threatening claim in the event of divorce, and examines aggravating circumstances such as a predicament, social or economic dependence or intellectual inferiority (BGH, order of 28.05.2025, XII ZB 395/24). Whether this interest can be transferred to a professional athlete with a club salary is open.

How company shares are held in a holding structure is described in the article on the holding structure.

Takeaway: If Jonas only wants to protect his company, the modified variant should be examined. Clarify in advance whether it actually preserves the matrimonial property regime and what consequences it has for inheritance.

What does separation of property mean for inheritance and the compulsory share?

The additional quarter only exists if the community of accrued gains ends through the death of a spouse. The surviving spouse's statutory share of the inheritance is then increased by one quarter of the estate, regardless of whether any accrued gains were achieved (§ 1371(1) BGB).

Under separation of property, only § 1931 BGB applies: alongside children, the spouse in principle inherits 1/4 (subsection 1). If one or two children of the deceased are called as statutory heirs alongside the spouse, the spouse and each child inherit in equal shares (subsection 4).

For Jonas and Lea with one child, the statutory inheritance share does not change: Lea would receive one half under both regimes. With a second child, her share under separation of property would fall to 1/3. The compulsory share (Pflichtteil) consists of half the value of the statutory share of the inheritance (§ 2303 BGB). Where the matrimonial property regime changes the statutory inheritance share, it can therefore also affect the compulsory shares. For the case where the spouse in the community of accrued gains neither becomes an heir nor receives a legacy, § 1371(2) BGB provides for a separate calculation based on the non-increased share of the inheritance. How this works out in an individual case must be examined separately.

The inheritance shares in detail and the tax on death are explained in the article Community of accrued gains and inheritance. What applies when a spouse is excluded from succession is covered in the article on disinheriting a spouse.

Takeaway: Coordinate your marital agreement and your will, especially if further children are planned.

Six steps to the notary appointment

1. Define the goal: Full separation of property or modified community of accrued gains? Write down which assets are to be protected.
2. Record today's assets: Assets and liabilities of both partners. This determines the transaction value under § 100 GNotKG.
3. Document initial assets: Position at the wedding as well as inheritances, gifts and endowments received afterwards, with evidence.
4. Calculate the equalisation if you are already married: Compare the accrued gains of both partners. If one exceeds the other, the other is entitled to half of the surplus, capped under § 1378(2) BGB. Clarify payment and tax treatment in advance.
5. Request a draft and obtain advice: The notary drafts the agreement. Ask the notary to tell you the transaction value. Family law questions such as maintenance and pension rights adjustment should be clarified separately, and the will coordinated.
6. Joint appointment: The agreement is concluded in the simultaneous presence of both parties for recording by the notary. Clarify in advance with the notary whether representation is possible.

Takeaway: The calculation belongs before the appointment. The appointment itself is only the last step.

Frequently asked questions

Do both partners have to be present at the notary?

The law requires the marital agreement to be concluded in the simultaneous presence of both parties for recording by a notary (§ 1410 BGB). Whether one party can be represented, this wording does not answer. Clarify this in advance with the notary.

How high is the notary fee for the marital agreement?

Under no. 21100 of the schedule of fees, a 2.0 fee under Table B applies, at least EUR 120. The basis is the transaction value under § 100 GNotKG. For a transaction value of EUR 1,000,000, this amounts to EUR 3,470, plus VAT and expenses.

Does an equalisation of accrued gains have to be paid if separation of property is agreed after the wedding?

The agreement ends the community of accrued gains (§ 1372 BGB). If the accrued gains of one spouse exceed those of the other, an equalisation claim arises when the regime ends, amounting to half of the surplus and capped under § 1378(2) BGB. Whether and how it can be waived remains an open review question.

Is the equalisation subject to gift tax?

If the community of accrued gains ends other than by death, the equalisation claim under § 1378 BGB does not form part of the acquisition within the meaning of §§ 3 and 7 ErbStG (§ 5(2) ErbStG). This is not a guarantee of the tax outcome. Limits and risks are explained in the article on the Güterstandsschaukel.

Does my spouse inherit less under separation of property?

Under intestate succession alongside one child, no: both then inherit one half each. Alongside two children, the spouse receives 1/3, alongside three or more 1/4, instead of 1/2 in the community of accrued gains (§ 1931(1) and (4), § 1371(1) BGB).

Reservations, open review questions and sources

Not covered: Maintenance, pension rights adjustment, foreign matrimonial property law and changes of residence, income taxes and the costs of legal advice from a lawyer.

Open review questions that the wording assessed here does not answer:

1. In the case of a partial exclusion, for example only for the company shares or only for the case of divorce, does the community of accrued gains and thus § 1371(1) BGB remain in place, or does separation of property take effect under § 1414 sentence 2 BGB?
2. Can a claim for equalisation that has already arisen be waived, and how is a waiver to be assessed under civil law and for gift tax purposes?
3. Can the interest recognised by the Federal Court of Justice in protecting an independent business be transferred to professional athletes, with or without a company of their own?
4. From when does a marital agreement concluded before the wedding take effect?
5. Can a party be represented when concluding the agreement under § 1410 BGB?
6. Which date applies for calculating the accrued gains and the amount of the equalisation claim in a divorce?
7. How are the notary costs calculated if the marital agreement is combined with further declarations in the same deed or if the spouses later return to the community of accrued gains?
8. How are future remuneration and bonuses valued under § 100(3) GNotKG, and when does an agreement concern only certain assets within the meaning of § 100(2) GNotKG?
9. How does the matrimonial property regime affect the compulsory shares in an individual case, in particular if a will exists?

Sources: The statutory texts are linked at the relevant point on gesetze-im-internet.de, the fee under no. 21100 to the schedule of fees in Annex 1 to the GNotKG, and the two decisions of the Federal Court of Justice to their official sources. The figures in the example are based solely on the assumptions disclosed. Further articles can be found in the topic area professional athletes and asset protection.

Limits: This article is general information. It does not replace the drafting of the agreement by a notary or family law or tax advice in an individual case, and it does not promise any tax outcome. If you would like your situation assessed, you can request an initial consultation.