- The social welfare authority can claw back a Schenkung (gift under German law) of the house within 10 years if the donor becomes a care case and cannot meet the care costs out of own assets (§ 528 BGB).
The 10-year clawback period on transferring a house is the most important deadline and is also the one most often misunderstood in practice. There are in fact three different 10-year periods — and they behave differently.
Anyone who transfers the house and ends up in a care home within 10 years can have their Schenkung clawed back by the social welfare authority. That period also runs when there is a Niessbrauch — unlike the Pflichtteil period. Proper preparation therefore begins at 60, not at 75.
Three different 10-year periods
In the context of Schenkungen there are three periods, all 10 years long but with different effects:
| Period | Legal basis | Who claws back? | Hemmed by Niessbrauch? |
|---|---|---|---|
| Schenkungsteuer (German gift tax) | § 14 ErbStG | Tax office (allowance reset) | No |
| Pflichtteilsergaenzung (claim for supplementation, § 2325 BGB) | § 2325 para. 3 BGB | Disinherited Pflichtteil creditors | Yes (BGH IV ZR 30/76) |
| Sozialhilferegress | §§ 528, 529 para. 1 BGB / § 93 SGB XII | Social welfare authority for care costs | No (BGH X ZR 140/10) |
Important: anyone planning Schenkungen "10 years before death" usually only has the Pflichtteil or the tax period in mind. The Sozialhilferegress period runs independently — and can be relevant even at smaller asset levels.
How does the clawback under § 528 BGB work?
§ 528 BGB provides: if after the Schenkung the donor becomes impoverished and can no longer meet their living costs or maintenance obligations, they can require the donee to return the gift or to pay equivalent value.
In the care scenario: if the donor becomes a care case and the social welfare authority has to step in for the care costs, the claim passes under § 93 SGB XII to the social welfare authority. The authority then pursues the gifted child.
The period is 10 years from execution of the Schenkung (§ 529 para. 1 BGB). Within this period the Schenkung remains fully clawback-able — limited only by two caps: (1) the Schenkung value and (2) the actual care-cost gap. There is no annual melting like under the Pflichtteilsergaenzung claim (§ 2325 para. 3 BGB). Only with the 10th anniversary does the claim drop to zero entirely — before that there is no melting.
Worked example: house transferred, 6 years later a care case
Parents transfer house worth EUR 500,000 to their child. 6 years later the mother becomes a care case. Care costs: EUR 5,000 per month. Own pension and assets cover only EUR 2,500. Shortfall: EUR 2,500 per month, EUR 30,000 per year.
- Market value of the house at the time of the Schenkung: EUR 500,000
- Period at the start of care: 6 years after the Schenkung — the 10-year mark has not been passed, so full access is possible (no proportional melting)
- Cap 1: at most the Schenkung value (EUR 500,000)
- Cap 2: at most the actual care-cost gap (monthly difference × duration of care)
- Concrete with EUR 30,000 care-cost gap per year: after 2 years of care = EUR 60,000 clawback, after 4 years = EUR 120,000, after 6 years = EUR 180,000
The social welfare authority therefore claims the accumulated care-cost gap — up to the limit of the Schenkung value and as long as the 10-year period has not yet expired. The gifted child has to pay this sum — either from own assets or by selling the house.
Step by step: reducing the care risk in 7 stages
- Gift early. 60 rather than 75. The earlier, the higher the probability that the 10-year period runs out cleanly.
- Document the health status. A current medical certificate at the time of the Schenkung. Important for a later dispute with the social welfare authority.
- Check the care insurance. Private supplementary care insurance can cover care costs enough to avoid the need for an application for social welfare assistance.
- Keep some own assets. Anyone who keeps bank assets alongside the house can meet the care costs out of those and avoid an application for social welfare assistance.
- Split the Schenkung from the rest of the assets. Do not gift the entire estate — keep liquidity for care.
- Protective clauses in the Schenkung contract. A reclaim clause for the care scenario with a clear mechanism (re-transfer, payout to the care fund).
- Care reservation in the contract. Obligation of the child to organise the care personally or to bear the care costs in whole or in part.
What is actually clawed back?
Important point: the social welfare authority does NOT automatically claw back the house. Three steps are required:
- The donor files an application for social welfare assistance for care costs
- The social welfare authority checks assets and Schenkungen of the last 10 years
- The social welfare authority shifts the claim to itself under § 93 SGB XII and pursues the donee
Amount of the claim: only the actual care-cost gap, not the full Schenkung value. If care lasts 2 years and EUR 60,000 in social welfare benefits has been paid out, then EUR 60,000 has to be repaid by the donee — even if the house is worth EUR 500,000.
But the child has to have liquidity or be in a position to sell the house. If the house is the only source of liquidity, the sale can be enforced by the courts.
Comparative calculation: care scenarios
Starting point: house EUR 500,000, parents 65 years old, gift to child.
| Care onset | Clawback risk | Practical effect |
|---|---|---|
| Within the first 9 years | Full access up to Schenkung value (max EUR 500,000), capped by actual care-cost gap | Social welfare authority claims the accumulated gap — no proportional melting per year |
| At or after the 10th anniversary | EUR 0 — claim fully extinguished (§ 529 para. 1 BGB) | Schenkung safe from a Sozialhilferegress |
Anyone gifting at 65 has a high probability of reaching the 10-year mark in good health. Anyone gifting at 80 statistically has only 5 to 10 years of life expectancy left — the period is often not run out.
Frequently asked questions
How long does the social-welfare clawback period run?
10 years from execution of the Schenkung — this is a cut-off date, not a melting allowance (§ 529 para. 1 BGB). Execution means the in rem transfer, for real estate the registration in the land register. Within the 10 years the Schenkung remains fully clawback-able (limited only by the Schenkung value and the actual care-cost gap). From the 10th anniversary the claim drops to zero entirely. In addition, each individual social welfare claim is itself time-barred 3 years after the authority's knowledge (§§ 195, 199 BGB) — that is the other period that is often confused with § 529 BGB in practice.
When does the 10-year period start to run for a house?
With the in rem execution — that is, with the entry of the donee in the land register. NOT with the notarial contract or the date on the deed of gift.
Does Niessbrauch hem the social-welfare period?
No, unlike for the Pflichtteilsergaenzung. The social-welfare period under §§ 528, 529 para. 1 BGB also runs for Schenkungen with a reservation of Niessbrauch. The BGH expressly ruled in its judgment of 19.07.2011 (X ZR 140/10): the reservation of a lifelong and comprehensive Niessbrauch is not detrimental to the start of the ten-year period under § 529 BGB. That is the decisive difference from Pflichtteil law (§ 2325 para. 3 BGB), where the Niessbrauch hems the period.
What can the social welfare authority demand from the gifted child?
Only the amount of the actual care-cost gap — that is, the monthly difference between care costs and the own resources of the care-dependent person. Maximum: the full Schenkung value, as long as the 10-year period has not yet expired. There is no proportional yearly melting under § 529 BGB — that would be § 2325 para. 3 BGB (Pflichtteilsergaenzung), and that is a different provision.
Can I protect the house through care insurance?
Private supplementary care insurance can cover the care costs to such an extent that no application for social welfare assistance is needed — and the clawback is then never triggered. Sensible for Schenkungen made shortly before the typical care age (75+).
What about pregnancy or serious illness at the time of the Schenkung?
If at the time of the Schenkung the donor is already foreseeably going to become a care case, the Schenkung can be classified as immoral (§ 138 BGB) or as a voidable disposition of assets. Schenkungen shortly before the care scenario carry particular risk.
Can the child defend itself against the clawback?
Yes, with three arguments: (1) the donor is not truly impoverished (own assets have not been exhausted), (2) the claim is already time-barred (3 years from the social welfare authority's knowledge), (3) hardship case under § 529 para. 2 BGB (returning the gift would jeopardise the donee's own existence).
Which protective clauses help in the contract?
Three clauses: (1) right of reclaim on care need with a clear mechanism, (2) care obligation of the child with a cost share, (3) limitation of the Wohnrecht (right of residence) to own use, with a payout on move into a care home.
More detailed answers
- Transferring a house in 2026: main guide with instructions
- Transferring a house and paying off siblings
- Transferring a house with a lifelong Wohnrecht
- Costs of transferring a house in 2026
- Transferring the house to one child and the Pflichtteil
- Asset protection: 7 risks for family wealth
Lead magnet: securing the care risk
- Emergency case file — Documentation of all assets and Schenkungen.
- Succession checklist — Lead-time plan with care-protection clauses.
- Book a first meeting — Individual care strategy for your asset transfer.
Authority sources
- § 528 BGB (Clawback on impoverishment of the donor)
- § 529 BGB (Limitation of the clawback)
- § 93 SGB XII (Transfer of claims)
- § 2325 BGB (Pflichtteilsergaenzung)
- § 14 ErbStG (Crediting of earlier acquisitions)
- § 138 BGB (Immorality)
- BGH judgment of 19.07.2011 — X ZR 140/10 (reservation of Niessbrauch does not hem § 529 BGB)
- BGH judgment of 27.09.1995 — IV ZR 217/93 (§ 528 BGB impoverishment)
- BFH judgment of 28.05.2019 — II R 8/16 (tax valuation of Niessbrauch — not the Pflichtteil period)
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