Disclaiming Inheritance: Who Inherits Then? Statutory Succession

The basic rule: § 1953 BGB

When you disclaim an inheritance, you are treated retroactively as if you had not existed at the moment of the inheritance. That is the central legal consequence under § 1953 Abs. 1 BGB: the inheritance to the disclaimer is treated as not having occurred.

The inheritance then goes to the person who would have inherited if the disclaimer had not been alive at the moment of the inheritance. That sounds abstract. In practice it means: the statutory succession moves up one level.

The ordnung — class system of the statutory succession

The statutory succession follows the ordnung — class system of the BGB: Erben (heirs) of the 1st ordnung — class (children, grandchildren) completely exclude Erben of the 2nd ordnung — class (parents, siblings). Within one ordnung the representation principle applies: if a child disclaims, that child's own children step into their place. A detailed explanation with all shares and ordnungen — classes can be found in our guide Statutory succession without a Testament.

For the question of who inherits after an Ausschlagung, two rules are decisive: first, within the same ordnung the descendants of the disclaimer step in. Second, the inheritance only moves into the next ordnung when no Erbe (heir) remains in the previous ordnung.

Concrete scenarios after an Ausschlagung

Scenario 1: a child disclaims, has own children

The Erblasser (testator) leaves three children. Child A disclaims. Child A has two own children.

Result: the children of A (grandchildren of the Erblasser) step in. Child B and child C each inherit a third. The two grandchildren share the third of child A and each receive a sixth.

Scenario 2: a child disclaims, has no own children

The Erblasser leaves three children. Child A disclaims and has no children.

Result: the share of child A accretes to the remaining co-Erben (heirs) (§ 1935 BGB). Child B and child C each inherit half.

Scenario 3: all children disclaim

The Erblasser leaves two children. Both disclaim. There are no grandchildren or they also disclaim.

Result: there are no Erben (heirs) of the first ordnung — class left. The inheritance goes to the Erben of the second ordnung: the parents of the Erblasser and their descendants. For these Erben too, an own Ausschlagung deadline runs.

Scenario 4: married Erblasser, spouse disclaims

The spouse is not a relative within the ordnung — class system. The spouse has their own statutory right to inherit alongside the relatives (§ 1931 BGB). If the spouse disclaims, the shares of the remaining Erben (heirs) grow accordingly.

Example (community of accrued gains): the Erblasser leaves a wife and two children. The wife would have inherited half (1/4 statutory share + 1/4 lump-sum accrued gains). The children each a quarter. If the wife disclaims, the two children each inherit half.

Scenario 5: all disclaim, the state inherits

If all Erben (heirs) of all ordnungen — classes disclaim, the estate falls to the Fiskus — state (§ 1936 BGB). In practice the federal state inherits in which the Erblasser (testator) last had their domicile.

The state cannot disclaim the inheritance. It is only liable, however, with the estate itself (§ 1936 Abs. 2 BGB). Private creditors cannot reach state assets. To avoid such situations from the start, timely Nachfolgeplanung (succession planning) is recommended.

Special case: minor children as following Erben

If you disclaim the inheritance, immediately check whether your minor children step in as next Erben (heirs). This is one of the most common mistakes with the Erbausschlagung (renunciation of inheritance).

Why this is dangerous

If you disclaim as a child of the Erblasser, your own children (the grandchildren of the Erblasser) step into your place. If your children are minors, they inherit the over-indebted estate if you do not also disclaim for them.

How to disclaim for your children

1. You have to declare the Ausschlagung as legal representative for each child separately.
2. The Ausschlagung for minors requires the approval of the family court (§ 1643 Abs. 2 BGB).
3. The deadline for the Ausschlagung of the children only begins when the children are appointed as Erben, i.e. with your own Ausschlagung.
4. The approval by the family court can take several weeks. File the application immediately after your own Ausschlagung.

Important: the six-week deadline for the children is not automatically suspended by the approval application at the family court. The courts are not consistent here. Therefore act as quickly as possible.

Ausschlagung with testamentary succession

If you were appointed as Erbe (heir) by a Testament, special rules apply.

Ausschlagung of the testamentary Erbschaft

If you disclaim the testamentary inheritance, you may still be appointed as statutory Erbe (heir). The testamentary and the statutory appointments are independent of each other. You can disclaim one and accept the other.

Following Erbe in the Testament

If the Erblasser appointed a following Erbe in the Testament, the inheritance passes to that following Erbe on disclaimer by the first appointee. If there is no following Erbe, statutory succession applies.

Berliner Testament

In the Berliner Testament, spouses appoint each other as sole Erben and designate the children as final Erben. If the surviving spouse disclaims, the final Erben become Erben of the first-deceased. At the same time, the disclaiming spouse can claim their Pflichtteil (compulsory share, § 2303 BGB).

Overview: who inherits after the Ausschlagung?

Step by step: carrying out the Erbausschlagung cleanly

In my advisory practice I keep seeing the Ausschlagung fail through form errors or come too late. This sequence works.

Step 1: estate inventory in the first 14 days

Capture assets (accounts, real estate, insurance with beneficiary clauses, household effects) and liabilities (loans, open invoices, current contracts, tax debts). If unsure: ask the Nachlassgericht (German probate court) about known liabilities.

Step 2: consequences check for the stepping-in Erben

Who steps in after me — own children, siblings, parents? Are minors affected? Are other family branches automatically burdened? Anyone who does not think this through in their own Ausschlagung sends the debts to the grandchildren — and the Ausschlagung deadline runs separately for them.

Step 3: appointment at the Nachlassgericht (German probate court) or Notar (within six weeks of knowledge)

Declaration for the record at the Nachlassgericht or in notarised form (§ 1945 BGB). Foreign domicile: six-month deadline (§ 1944 Abs. 3 BGB).

Step 4: if minors step in: apply for family court approval

Immediately after your own Ausschlagung. Approval takes 4-8 weeks. The six-week deadline for the children is separate and is not automatically suspended by the application.

Step 5: documentation and follow-up

Keep the Ausschlagung certificate. Check beneficiary clauses in life insurance — these do NOT fall into the estate and remain in place despite the Ausschlagung. Clarify separately your own tax liability through paid-out beneficiary entitlements.

Step 6: do NOT remove household items before the Ausschlagung

Anyone who takes furniture, jewellery or keepsakes from the flat is treated as Erbe (heir) by implication (acceptance of the Erbschaft). From my practice: a single picture frame taken home can tip over the Ausschlagung.

Frequently asked questions (FAQ)

How long do I have to disclaim the inheritance?

Six weeks from knowledge of the inheritance and the ground of appointment (§ 1944 Abs. 1 BGB). With a foreign domicile of the Erblasser (testator) or of the Erbe: six months. The deadline is NOT extendable.

Can I disclaim the inheritance only in part?

No. The Ausschlagung is always "all or nothing". Anyone who wants to keep the share value and shed the debts is mistaken. The practical solution: acceptance + application for Nachlassverwaltung (estate administration) (§ 1975 BGB) — the liability is limited to the estate.

What does an Erbausschlagung cost?

The fee at the Nachlassgericht follows the value of the estate (GNotKG table). With an over-indebted or worthwhile estate of 50,000 EUR, the fee is around 165 EUR. Notarised certification costs 50 to 200 EUR depending on value. From my experience these are the only certain costs — everything else is debt risk.

What happens with life insurance if I disclaim?

Life insurance with a specifically named beneficiary does NOT fall into the estate. Whoever is registered as beneficiary receives the payout despite the Ausschlagung. The same applies to savings plans with a death benefit and to pension equalisation accounts.

Can my creditors force me to accept?

Not directly. Anyone who deliberately disclaims to disadvantage creditors risks a challenge under the Anfechtungsgesetz. The court can then treat the Ausschlagung as ineffective vis-à-vis the creditors. Advice before the Ausschlagung is mandatory here.

Who bears the Beerdigungskosten if all disclaim?

The duty to bury is regulated by state law and applies to the nearest relatives regardless of inheritance law. Meaning: even those disclaiming can be under a burial duty. The costs are then later to be claimed as an estate liability against the Fiskus — state, if the state inherits.

What if I only notice after six weeks that the estate is over-indebted?

Anfechtung of the acceptance for mistake about the over-indebtedness (§ 1954 BGB) — possible but in practice often difficult. Precondition: you could not have identified the over-indebtedness with careful examination. Anyone who failed to check loses.

Comparison table: Ausschlagung vs. acceptance with an over-indebted estate

Next steps

Before you disclaim, you should know who is next in line after you. Especially if minor children are affected, you have to act quickly.

Read the detailed guide on Erbausschlagung for all details on deadlines, costs and formal requirements. An overview of all current duties is provided in the guide Inheritance occurred: the most important steps and deadlines. Use the Inheritance Navigator to capture your personal situation. Or arrange a first meeting to discuss the consequences of the Ausschlagung in your concrete case.

Further detail answers

• Disclaiming inheritance — Pillar: deadline, costs, process
• Disclaiming inheritance — missed deadline, what to do?
• Disclaiming inheritance and Beerdigungskosten — who pays?
• Disclaiming inheritance template and form
• Disclaiming inheritance costs — Notar, court, lawyer
• Disclaiming inheritance among siblings
• Topic hub: Disclaiming inheritance

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