Disinheriting because of Break of Contact: §§ 1938, 2333 BGB 2026

Disinheritance and Pflichtteilsentziehung: two different things

In most first meetings two legally entirely different processes get mixed up. Disinheritance under § 1938 BGB merely excludes a statutory heir from succession. Pflichtteilsentziehung under § 2333 BGB, on top of that, withdraws the monetary claim of half the statutory share of the estate.

An example makes the difference clear: if you disinherit your son, he inherits nothing — no property, no account, no jewellery. But he can demand cash from the appointed heirs in the amount of his Pflichtteil. Only an effective Pflichtteilsentziehung also cuts off this monetary claim. A full overview of the grounds and consequences is in my guide on Enterben — requirements, Pflichtteil and consequences.

§ 1938 BGB: how testamentary disinheritance works

Disinheritance itself is legally simple. Under § 1938 BGB, the Erblasser can exclude a statutory heir from succession by disposition on death without appointing another heir. No justification is required. Three formulations are common in practice:

1. Express disinheritance: "My son Markus Mueller, born on 12.03.1985, is excluded from succession."
2. Implied disinheritance: appointing other persons as sole heirs in the testament automatically disinherits all other statutory heirs.
3. Negative certificate: a pure disinheritance testament that contains only the exclusion without naming other heirs is also possible — then statutory succession takes effect, but without the disinherited person.

Important: the testament has to be formally valid (handwritten with signature, § 2247 BGB, or notarised). A justification in the testament is legally optional. For a planned Pflichtteilsentziehung, however, it is mandatory, as we will see in a moment.

§ 2333 BGB: the four conclusive grounds for forfeiture

This is where the real catch sits. § 2333 BGB lists the grounds for Pflichtteilsentziehung enumeratively — that is, conclusively. Everything that is not on this list simply will not do.

Even this list shows: this is about serious misconduct, not about broken relationships. A child's silence over years — however painful for the parents — falls under none of these grounds.

On top of that, the ground has to have already existed at the time the testament was made and to be specifically described in the testament itself (§ 2336 BGB). Anyone simply writing "because of his ungrateful behaviour" produces an ineffective clause.

Why break of contact is not enough: the Federal Constitutional Court and the BGH line

The case law has tightened rather than loosened the hurdles over the past 20 years. The Pflichtteil enjoys constitutional protection under Art. 14 (1) in conjunction with Art. 6 (1) of the Basic Law (Grundgesetz). The Federal Constitutional Court made clear in its leading decision of 19.04.2005 (1 BvR 1644/00, 1 BvR 188/03) that children are entitled to a fundamentally inalienable economic minimum participation in the estate of their parents.

The BGH has consistently developed this line. Particularly pointed is the leading decision BGH, order of 12.02.2014 — XII ZB 607/12, which formally concerned elderly-parent maintenance (§ 1611 BGB), but whose principles transfer 1:1 to § 2333 BGB: "A break of contact initiated by the parent entitled to maintenance regularly constitutes misconduct. It only leads to forfeiture in exceptional cases, however, where further circumstances make the conduct of the maintenance creditor appear to be serious misconduct within the meaning of § 1611 (1) sentence 1 alt. 3 BGB." Translated: silence is misconduct — but not serious misconduct. The same applies to Pflichtteilsentziehung.

In settled case law it is also stressed that § 2333 BGB, as an interference with the constitutionally protected family succession, is to be construed narrowly. Personal conflicts, disputes about life choices or a long-standing radio silence are therefore not enough — even where the distancing came from the child.

In my advisory practice I often see the following pattern: clients arrive with the idea that a "bad child" will end up empty-handed because the testament gives all the assets to the daughter. In reality, the disinherited son receives, after the Erbfall (death event), a letter from a lawyer and a bank account onto which his sister has to transfer within weeks 50 per cent of his statutory share — as the Pflichtteil in cash.

Four strategies that actually work in practice

If the Pflichtteil cannot be eliminated legally, you have to attack at a different point — at the assets themselves or at the relationship with the Pflichtteil-entitled person. Four routes have proven themselves:

1. Lifetime Pflichtteilsverzicht

The cleanest route runs through a notarised Pflichtteilsverzicht under § 2346 BGB. The Pflichtteil-entitled person contractually waives the later claim — usually in return for a settlement, a Schenkung or another economic equivalent. This route requires that some contact still exists and an agreement is possible. Details on contract, costs and structuring options are in the article on the Pflichtteilsverzicht — contract, costs and strategy.

2. Lifetime Schenkungen with the ten-year period

Assets that you give away do not fall into the estate — and so reduce the calculation base of the Pflichtteil. However, § 2325 BGB regulates a supplementary Pflichtteil claim for Schenkungen made within the last ten years before the Erbfall. The Schenkung is tapered down by 10 per cent per year. Anyone who consciously uses the ten-year period for Schenkungen can significantly reduce the Pflichtteil claim. Important: a reservation of Niessbrauch suspends the start of the period — a trap often overlooked in practice.

3. Familienstiftung or Familienpool

For larger estates, a transfer to a Familienstiftung (German family foundation under private law, often used for asset protection over generations) or a Familienpool (a partnership-based structure pooling family assets, typically as GmbH und Co. KG) suggests itself. The assets are removed from the disposition of the founder and legally belong to the foundation. The ten-year window of § 2325 BGB applies here too. Anyone walking this road should set it up as a long-term strategy — quick fixes three years before the planned Erbfall achieve little.

4. Life insurance with an irrevocable beneficiary designation

Life-insurance sums paid out directly to a named beneficiary do not belong to the estate. They can, however, increase the Pflichtteil by way of supplement under § 2325 BGB if the beneficiary designation was established within the ten-year window. Used with care, the instrument still works — especially where liquidity is to flow specifically to a chosen person.

Comparison of effectiveness

In my advisory practice I often ask clients which Pflichtteil reduction would realistically satisfy them. The overview below shows how far the individual levers reduce the claim — at a typical estate value of EUR 1,000,000 and two children (one disinherited, one appointed):

Worked example: what the disinherited son still gets

A typical case from practice: father Klaus M. (widowed) has two children — daughter Sabine and son Markus. Markus has had no contact with his father for 22 years. Klaus appoints Sabine as sole heir in his testament and expressly disinherits Markus.

Markus thus receives, despite 22 years of radio silence, a claim of EUR 250,000 in cash. The Pflichtteil claim becomes time-barred under §§ 195, 199 BGB three years from the end of the year in which the entitled person becomes aware of the Erbfall and the disinheriting disposition; the maximum period of 30 years from the Erbfall in § 2332 BGB today only applies to the supplementary claim against the recipient of the gift (§ 2329 BGB). Had Klaus instead given EUR 400,000 to Sabine 11 years earlier, that sum would no longer be subject to supplement — and the Pflichtteil would have come down to EUR 150,000.

Is a one-sided testamentary draft open to legal attack?

A final question often comes up: can the disinherited son challenge the testament and still become full heir? The grounds for challenge are set out in §§ 2078 ff. BGB — mistake, threat or passing over a Pflichtteil-entitled person whose existence the Erblasser was unaware of. In the classic break-of-contact case, none of these applies. For more on grounds and time limits see my guide on challenging a testament — grounds and deadlines.

The disinheritance itself is neither unconstitutional nor contrary to public policy — that has been clearly worked out, most recently by the Bavarian Supreme Regional Court (BayObLG, order of 08.05.2024 — BeckRS 2024, 24980 on the conformity with public policy of conditions). The Erblasser is free to distribute their assets as they wish; the only limit is the Pflichtteil.

Frequently asked questions

How high is the Pflichtteil where there is break of contact?

The Pflichtteil remains at 50 per cent of the statutory share of the estate (§ 2303 BGB). With an estate value of EUR 1,000,000 and two children, every disinherited child receives EUR 250,000 as Pflichtteil — regardless of whether there has been no contact for 5 or 35 years.

Is decades of radio silence enough for a Pflichtteilsentziehung?

No. § 2333 BGB does not contain a ground "lack of contact". Even decades of radio silence — even where it comes from the Pflichtteil-entitled person — does not meet any of the four conclusively listed grounds (since the 2010 inheritance-law reform). More on the claim itself in the guide on the Pflichtteil and its calculation basis.

Can I really withdraw the inheritance from my child?

You can disinherit your child under § 1938 BGB and exclude them from the position of heir. The statutory Pflichtteil claim in cash remains, however — and is, on the view of the Federal Constitutional Court, fundamentally inalienable.

What does a notarised Pflichtteilsverzicht achieve?

With a notarised Pflichtteilsverzicht under § 2346 BGB the person entitled waives the later claim contractually — usually against a settlement. This is the only reliable route to eliminate the Pflichtteil, but it depends on the cooperation of the entitled person.

How long does a Schenkung work against the Pflichtteil claim?

Schenkungen are tapered down by 10 per cent per year within the ten-year window before the Erbfall under § 2325 BGB. After the ten years have passed they are no longer relevant for the Pflichtteil — important: a reservation of Niessbrauch (usufruct under §§ 1030 ff. BGB, typically retained on gifted assets) suspends the start of the period.

Do I have to justify the disinheritance in the testament?

For pure disinheritance under § 1938 BGB, no. For Pflichtteilsentziehung under § 2333 BGB, yes — the ground has to be specifically named in the testament (§ 2336 BGB), otherwise the forfeiture clause is ineffective.

Are there special cases in which break of contact does lead to forfeiture?

In very narrow exceptions — for example where the Pflichtteil-entitled person also maliciously breaches the maintenance duty towards an Erblasser in need of care — the break of contact can have indicative weight. Pure emotional distancing without accompanying circumstances, however, is not enough.

What you should do now

If you want to keep a child or another Pflichtteil-entitled person away from your assets, the testamentary disinheritance alone is the first — and usually weakest — step. What matters is lifetime structuring: notarised waiver, staggered Schenkungen observing the ten-year period and, where appropriate, a Stiftung (foundation) or Familienpool solution. Anyone planning ten years ahead can substantially reduce or fully eliminate the Pflichtteil claim.

A final note from 15 years of advisory practice: the biggest mistake is to defer the topic. Anyone starting to plan at 75 often no longer has the ten years they would need. Anyone structuring at 60 still has them.

If you want your own situation examined, please arrange a first meeting. Together we look at which Pflichtteil risks exist in your estate and which structuring really bites — before it is too late.