Family Pool GmbH & Co. KG: Pooling Assets 2026

How is a family pool structured as a GmbH & Co. KG?

In a limited partnership (Kommanditgesellschaft), § 161 HGB distinguishes between personally liable partners and limited partners (Kommanditisten). In the structure considered here, a GmbH assumes the personally liable position. Family members participate as limited partners.

For the GmbH's liabilities, under § 13 Abs. 2 GmbHG the company assets are liable. The statement that the GmbH is liable only up to the amount of its share capital would be wrong. § 5 Abs. 1 GmbHG sets a minimum share capital of 25,000 euros. This is neither a liability cap nor a complete list of the formation costs.

For limited partners, § 171 HGB applies: they are liable directly to the company's creditors up to their liability sum; liability is excluded to the extent that the agreed contribution has been made. A repayment of the contribution or certain profit withdrawals can, under § 172 Abs. 4 HGB, result in the contribution being deemed not made again vis-a-vis creditors. Withdrawals therefore also belong in the planning.

Illustration of the family pool as a GmbH and Co. KG

What should the partnership agreement regulate for your family?

Before the structuring, those involved should clarify their goals. These questions provide a working basis for the legal and tax advice:

These wishes must be examined for their legal feasibility. The term "family pool" entails neither guaranteed full control by the parents nor blanket protection against all claims.

Ongoing taxation: also examine the commercial characterisation

§ 15 Abs. 3 Nr. 2 EStG covers, among other things, a partnership that does not itself carry on a commercial business, in which only corporations are personally liable and only these or persons outside the circle of partners are authorised to manage the business. Where there is activity with the intention of generating income, it is then deemed a commercially characterised partnership (gewerblich geprägte Personengesellschaft).

A GmbH & Co. KG with a GmbH that is personally liable and solely authorised to manage the business can meet these conditions even in the case of pure letting. The income can therefore not be treated as private letting income merely because of the let properties. The management powers and the activity actually carried out must feed into the tax classification. The consequences for Gewerbesteuer and later disposals must be examined separately.

Business assets do not automatically mean tax exemption

For the inheritance and gift tax relief, § 13b ErbStG must be examined separately. The provision distinguishes between assets eligible for relief, assets qualifying for relief and assets classified as Verwaltungsvermögen under German law. It contains exceptions and its own calculation steps, for example for let properties, debts and the permitted portion of Verwaltungsvermögen treated as qualifying assets (unschädliches Verwaltungsvermögen).

A GmbH & Co. KG with real estate or securities does not receive blanket relief by virtue of its legal form. For business assets, you will find further questions in the overview on business succession.

Example: How far do the gift allowances reach?

The following calculation is a simplified model. The assumptions are:

• a total value of the shareholdings relevant for gift tax of 4.2 million euros;
• two parents each with a 50 percent share and two children;
• unlimited tax liability and no relevant earlier acquisitions of the respective child from the respective parent;
• unchanged values, no additional exemptions and no valuation discounts.

Under these conditions, pursuant to § 16 Abs. 1 Nr. 2 ErbStG, 400,000 euros per child and parent remain within the personal allowance. With four parent-child relationships, this is arithmetically 1.6 million euros per fully usable round.

Several acquisitions from the same person within ten years are aggregated under § 14 Abs. 1 ErbStG. For the second round, it is expressly assumed here that the first round lies outside the relevant aggregation period and that there are no further gifts to be taken into account. The exact point in time must be examined for each gift relationship. A new calendar year does not reset an allowance.

After two such rounds, the entire assets would not yet be transferred. Nor do the allowances quantify a tax saving of 3.2 million euros. For a comparison, the actual acquisitions, their valuation, further exemptions and the tax due in each case would have to be calculated. Moreover, the personal allowances do not arise only through a family pool. Read more about the basics at the gift allowance.

Contributing real estate and then gifting shares

§ 5 GrEStG provides, for certain transfers of property to a joint ownership (Gesamthand), a proportionate non-levy of real estate transfer tax. Paragraph 3 attaches a ten-year holding rule to this: if the contributor's share decreases within ten years after the property is transferred to the joint ownership, the conditions of the relief may cease to apply to that extent. The further conditions and exceptions must also be examined.

§ 24 GrEStG treats partnerships with legal capacity as joint ownership communities (Gesamthand) for German real estate transfer tax purposes. The legal status applicable to the specific transfer date is decisive. For the planning, this means: the contribution and the subsequent gift of company shares must be considered together. The allowance calculation above does not reflect this real estate transfer tax examination.

What needs to be clarified in the case of minor children?

Where minor children participate, representation and a possible need for approval must be clarified before conclusion. § 1643 BGB refers to family court approvals for certain legal transactions. § 1852 BGB concerns, among other things, the acquisition or disposal of shares in companies that operate a business (Erwerbsgeschäft under German law), as well as certain partnership agreements. This does not entail a blanket answer for every family pool participation.

Which documents help for an initial assessment?

Compile an overview of assets, owners, loans, ongoing income and earlier gifts. Add the desired participations of the children and your own provision needs. Have the setup and ongoing expenditure quantified before you decide on a structure. No universally valid minimum asset threshold is assumed here.

In the case of a transfer of shares, the notification requirements of § 30 ErbStG must also be observed, including the exceptions for gifts formally authenticated by a court or notary (gerichtlich oder notariell beurkundet).

What happens next?

Whether a family pool, a direct transfer or another structure fits your goals can be clarified on the basis of this inventory. You can request a conversation via the contact page. Our article on early succession planning explains the broader context.