Disinheriting a child without Pflichtteil in 2026: is it really possible?

What does "disinheriting a child without Pflichtteil" mean? Definition and legal position in 2026

Disinheritance is the order in a testamentary disposition that a statutory heir is excluded from the inheritance. It is expressly permitted under § 1938 BGB and requires no reason. The decisive catch: disinheritance does not extinguish the Pflichtteil. Under § 2303 BGB the Pflichtteil of a descendant amounts to half the value of the statutory share of the estate and is a pure monetary claim against the heirs.

Anyone who writes "My son Lukas receives nothing" excludes him from the position of heir but the Pflichtteil claim — half the statutory share — remains in place. The question "disinheriting a child without Pflichtteil" is therefore more precisely a question about ways of legally removing or economically reducing the Pflichtteil.

The basics of Pflichtteil law and the detailed calculation can be found in our Pflichtteil guide for children. Anyone who only wants to disinherit (without removing the Pflichtteil) finds the steps in the overview article Disinheriting in 2026: conditions and consequences.

§ 2333 BGB: Pflichtteilsentziehung — the only direct option

The only way to deprive a child of the Pflichtteil directly in the will is the Pflichtteilsentziehung under § 2333 BGB. Since the inheritance-law reform of 2010 the statute lists four exhaustive grounds — no general clause, no "breakdown of the relationship", no "ingratitude" in the everyday sense. The former ground No. 5 (old version) — "dishonourable or immoral way of life" — was deleted in that reform without replacement.

The four grounds for forfeiture under § 2333 Abs. 1 BGB

Under § 2333 Abs. 1 BGB the testator can deprive a descendant of the Pflichtteil if the descendant:

1. attempts on the life of the testator, the testator's spouse, another descendant or a person similarly close to the testator,
2. is guilty of a crime or a serious intentional offence against one of those persons,
3. maliciously violates the statutory maintenance obligation towards the testator, or
4. is finally convicted of an intentional offence to a prison sentence of at least one year without probation and participation in the estate is therefore unconscionable for the testator. § 2333 Abs. 1 No. 4 sentence 2 BGB treats as equivalent the final order of committal to a psychiatric hospital or an addiction-treatment institution because of a similarly serious intentional act.

Burden of proof and form: the five traps

Three points are decisive in practice:

First: under § 2336 Abs. 2 BGB the ground for forfeiture has to be named concretely in the will. A general phrase such as "because of his conduct" is not enough. You have to describe the factual circumstances that fill the ground.

Second: under § 2336 Abs. 3 BGB the burden of proof lies with whoever relies on the forfeiture — that is, your appointed heirs. Criminal-record extracts, police reports, witnesses and judgments should be documented and stored in the emergency folder.

Third: the ground must have existed at the time the will was drawn up. Later misconduct is not enough — you then have to supplement the will subsequently.

Mere breakdown of contact is not enough for § 2333 BGB — even decades of silence is not a ground for forfeiture. The Bundesgerichtshof in its leading decision BGH of 12.02.2014 — case no. XII ZB 607/12 clarified on the analogous question of parental maintenance: "A breakdown of contact emanating from the parent entitled to maintenance regularly constitutes misconduct. It only exceptionally leads to forfeiture, however, where further circumstances make the conduct of the maintenance creditor appear also as serious misconduct." This valuation applies one-to-one to the Pflichtteilsentziehung — silence is misconduct, but not serious misconduct within the meaning of § 2333 BGB. More on this in our special article Disinheriting on grounds of broken contact: §§ 1938, 2333 BGB 2026.

Pflichtteilsverzicht: the reliable route against a settlement

If the § 2333 conditions are not present — and that is the regular case — the only reliable route is the Pflichtteilsverzicht under § 2346 BGB. The descendant contractually waives his future Pflichtteil during the testator's lifetime. Under § 2348 BGB this contract has to be notarised.

In my advisory practice the Pflichtteilsverzicht is the economically superior instrument: unlike § 2333 BGB there is no uncertainty of success, no burden of proof, no later dispute. The price is the negotiation with the child to be disinherited — and usually a settlement.

Typical settlement levels from my mandates in 2025 and 2026:

• With a clear overview of assets and a good relationship: 30 to 50 percent of the expected Pflichtteil
• With distrust or contested assets: 50 to 70 percent
• With dispute or blackmail potential: over 70 percent

Notary fees vary with the transaction value (the value of the Pflichtteil) — for an expected Pflichtteil of 200,000 EUR the notarisation fees lie at about 1,200 to 1,800 EUR under the GNotKG. The details, including model contract and strategy tips, are in the Pflichtteilsverzicht guide 2026.

5 strategies for reducing the Pflichtteil in 2026 compared

Not every family needs the sledgehammer of the Pflichtteilsentziehung. Several smaller levers combined often lead to an effective reduction of the Pflichtteil. The following table compares the five most important strategies:

Under § 2325 BGB Schenkungen of the last ten years before the death are added back proportionally for the Pflichtteil supplement claim — per completed year after the Schenkung the value added back melts down by 10 percent. Only after ten years is the value completely out of the Pflichtteil supplement claim. A special rule applies for spouses and for Niessbrauch (usufruct): there the period often does not start to run — details under 10-year period for Schenkungen.

For larger estates the Familienstiftung is often the instrument of choice, because the transferred assets fall out of the later estate — Pflichtteil supplement claims are only possible in the first ten years after the asset transfer.

Concrete worked example: 800,000 EUR estate, two children

A client — widower, 68 years old, two children (Anna and Lukas) — wants to disinherit Lukas (broken contact for ten years, no misconduct within the meaning of § 2333 BGB). Estate: 800,000 EUR (property 500,000 EUR, securities 300,000 EUR).

Starting point without strategy:

• Statutory share per child: 400,000 EUR
• Pflichtteil Lukas: 200,000 EUR (50 percent of the statutory share)
• Liquidity requirement for Anna: 200,000 EUR in cash within a few months

Strategy 1 — Pflichtteilsverzicht against 100,000 EUR settlement (50 percent):

• Notary cost: approx. 1,400 EUR
• Schenkungsteuer Lukas: 0 EUR (Freibetrag 400,000 EUR under § 16 ErbStG)
• Result: Anna inherits 800,000 EUR, the Pflichtteil risk is entirely removed
• Saving versus the Pflichtteil: 100,000 EUR plus the avoidance of dispute

Strategy 2 — Schenkung of 300,000 EUR securities to Anna now (period starts to run):

• For the death in 11+ years: Pflichtteil supplement falls away
• Remaining estate 500,000 EUR → Pflichtteil Lukas now only 125,000 EUR
• Saving: 75,000 EUR plus reduction of Erbschaftsteuer through two uses of the Freibetrag

Strategy 3 — combination of waiver + Schenkung: Lukas accepts an 80,000 EUR settlement (40 percent), Anna in parallel receives a Schenkung of 200,000 EUR. Total saving: approx. 120,000 EUR plus tax optimisation.

In practice I choose the strategy by reference to the relationship with the disinherited child, the structure of the estate and the testator's health prognosis — a care case before the 10-year period has expired is the biggest silent risk.

Three traps that I see again and again in practice

Trap 1: "My will is enough." Many clients write "My son receives nothing" and believe the matter is settled. In fact only the position of heir is gone — the Pflichtteil claim of 200,000 EUR remains. Without flanking lifetime measures the disinheritance is economically without consequence.

Trap 2: Berliner Testament (joint will between spouses) without a penalty clause. With the Berliner Testament the surviving spouse becomes preliminary heir — if a child immediately demands the Pflichtteil the spouse falls into a liquidity squeeze. A Pflichtteil-penalty clause can cushion this. How it works and when which penalty clause pays off is shown by the comparison Pflichtteil penalty clauses: standard, Jastrow, remarriage 2026.

Trap 3: Schenkung to the wrong recipient. Schenkungen to the spouse do not trigger the 10-year period under § 2325 Abs. 3 BGB at all — the period only begins with dissolution of the marriage. Anyone who overlooks this believes himself safe after ten years and is surprised in a Pflichtteil court case.

Frequently asked questions

How high is the Pflichtteil of a child in 2026?

The Pflichtteil of a child is, under § 2303 BGB, exactly half of the statutory share. Example: with a widower with two children and 800,000 EUR estate, each child statutorily receives 400,000 EUR — the Pflichtteil per child is therefore 200,000 EUR as a pure monetary claim against the heirs.

Can I disinherit my child without Pflichtteil because of broken contact?

No. Decades of broken contact do not fulfil any of the four grounds of § 2333 BGB. You can exclude the child as heir but the Pflichtteil claim remains. Economically effective is only the notarial Pflichtteilsverzicht or a lifetime strategy via Schenkungen and structures such as the Familienstiftung.

What does a Pflichtteilsverzicht at the notary cost?

The notary costs follow the transaction value (the amount of the Pflichtteil) under the GNotKG. For a Pflichtteil of 200,000 EUR the notarisation costs lie at about 1,200 to 1,800 EUR. On top comes the settlement negotiated with the child waiving — typically 30 to 70 percent of the expected Pflichtteil.

Does a Schenkung help to avoid the Pflichtteil?

Only partially. Under § 2325 BGB the value of Schenkungen of the last ten years is added back to the estate for the Pflichtteil calculation, with the value melting down by 10 percent per completed year after the Schenkung. Only after ten years is the Schenkung fully Pflichtteil-safe — and even then only if no Niessbrauch (usufruct) or other reservation postpones the start of the period.

Can I deprive an adult child of the Pflichtteil if it will not talk to me?

Mere silence or distance is, under settled case law, not enough. The Pflichtteilsentziehung under § 2333 BGB requires serious misconduct such as criminal offences or attempts on life. With "soft" conflicts the Pflichtteilsverzicht during lifetime is usually the only practicable route.

What happens to the Pflichtteil if I transfer my assets into a Familienstiftung?

Assets transferred to the foundation fall out of the later estate. Pflichtteil supplement claims under § 2325 BGB can be made in the first ten years after the asset transfer; after that the foundation assets are Pflichtteil-safe. The set-up costs are 5,000 to 15,000 EUR plus ongoing administration — sensible typically from assets of 1 to 2 million EUR.

Does the reason for the Pflichtteilsentziehung have to appear in the will?

Yes, mandatorily. Under § 2336 Abs. 2 BGB the concrete factual circumstances on which the forfeiture is based have to be described in the will precisely enough for the probate court to be able to verify the ground of § 2333 BGB. A general phrase such as "because of his conduct" makes the forfeiture ineffective — the Pflichtteil then remains in place.

Your next step: structured Pflichtteil strategy

In my experience the project "disinheriting a child without Pflichtteil" usually fails in 2026 because of unclear goals on the part of those involved. The law gives more than many think. Before we talk about § 2333 BGB, waiver agreements or foundations I clarify three questions with clients: is it about fairness among children, about substance protection for the business, or about avoiding conflict on death? The answer decides which of the five strategies — or which combination — is the right one.

If you want to structure a concrete family situation legally and for tax, talk to me. I offer a 30-minute first meeting in which we go through the structure of your assets, the relationship with your descendants and your time horizon. We then develop a tailored Pflichtteil strategy — with clear costs, deadlines and risks.

Book a meeting: sprichmit.florian-enders.de — or write to me directly via the contact form.