- The reservation Niessbrauch (German usufruct, § 1030 BGB) reduces the tax value of a Schenkung (gift under German law) by the capital value of the right of use
Result up front: with a reservation Niessbrauch, parents often save 30 to 60 percent of the Schenkungsteuer when gifting a property. Three figures decide the outcome: the annual value of the use, the multiplier under life expectancy and the market value. Rule of thumb: the younger the donor, the higher the saving — a 55-year-old saves significantly more than a 75-year-old.
Anyone who uses the Niessbrauch on a Schenkung correctly can save Schenkungsteuer, transfer assets early and at the same time keep economic control. The reservation Niessbrauch has been a classic of succession structuring for decades — and in 2026, against the backdrop of rising property values and unchanged Freibetraege, it is gaining further weight.
In this article I explain how the Niessbrauch works legally, how the tax office calculates the tax advantage and what pitfalls you should know — including a concrete worked example from my advisory practice.
What is a Niessbrauch on a Schenkung?
The Niessbrauch is a real (dingliches) right of use. Under § 1030 BGB it gives the right to take the uses of a thing — that is, to collect rents, to live in the property or to receive dividends — without being the owner.
In a Schenkung with a Niessbrauch reservation the donor transfers ownership (for example of a property) to the donee and at the same time keeps the right of use. Economically not much changes for the donor at first: they remain the recipient of the income. For tax purposes, all the more changes.
Reservation Niessbrauch vs. grant Niessbrauch
There are three variants that come up in practice:
| Variant | Who receives the Niessbrauch? | Tax effect |
|---|---|---|
| Reservation Niessbrauch | Donor keeps the right | Reduces the tax value of the Schenkung |
| Grant Niessbrauch | Donee receives only the right of use | Separate Schenkung at the capital value |
| Quota Niessbrauch | Niessbrauch limited to a share (e.g. 50 %) | Proportionate capital value deduction |
In my advisory practice the reservation Niessbrauch is used in over 80 percent of cases — and is the real lever for saving tax.
Legal basis at a glance
Three sets of rules govern the interplay:
- §§ 1030–1089 BGB — civil-law Niessbrauch (gesetze-im-internet.de/bgb)
- § 10 Abs. 6 ErbStG — deduction of encumbrances from the Schenkungsteuer (gesetze-im-internet.de/erbstg)
- §§ 13–16 BewG — valuation of recurring uses (gesetze-im-internet.de/bewg)
How does the Niessbrauch save tax? The calculation
The lever lies in § 10 Abs. 6 ErbStG: encumbrances the donee takes on — and that includes the Niessbrauch retained by the donor — reduce the taxable transfer. The value of the Schenkung drops by the capital value of the Niessbrauch.
Capital value under § 14 BewG
Under § 14 BewG the capital value depends on two factors:
- Annual value: the annual net income from the right of use (net rent after operating costs)
- Multiplier: derived from the statistical life expectancy (mortality table of the Federal Statistical Office)
Important cap: under § 16 BewG the annual value may at most be 1/18.6 of the market value. That prevents inflated valuations on high-yielding objects.
Example calculation: a EUR 800,000 property
Take a typical multi-family house from my client practice:
- Market value: EUR 800,000
- Donor: 65 years old, male → multiplier 11.852 (BMF table 2026)
- Net annual rent: EUR 28,000
- Cap: 800,000 ÷ 18.6 = EUR 43,011 (annual value is below this, so EUR 28,000 stands)
- Capital value of the Niessbrauch: 28,000 × 11.852 = EUR 331,856
This is how the Schenkungsteuer calculation looks for one child:
| Position | Without Niessbrauch | With reservation Niessbrauch |
|---|---|---|
| Market value of property | EUR 800,000 | EUR 800,000 |
| Deduction for Niessbrauch | EUR 0 | –EUR 331,856 |
| Tax value | EUR 800,000 | EUR 468,144 |
| Freibetrag child (§ 16 ErbStG) | –EUR 400,000 | –EUR 400,000 |
| Taxable transfer | EUR 400,000 | EUR 68,144 |
| Tax rate (class I) | 15 % | 7 % |
| Schenkungsteuer | EUR 60,000 | EUR 4,770 |
Saving: around EUR 55,000 — and the donor keeps EUR 28,000 in annual rent plus the full right of residence.
Which asset classes are suitable for a Niessbrauch?
Not every asset fits the reservation Niessbrauch. The following types are practically relevant:
| Asset | Suitability | Special feature |
|---|---|---|
| Let property | Very high | Classic case, rent as the annual value |
| Owner-occupied house | High | Wohnrecht (right of residence) instead of rent (§ 1093 BGB) |
| Securities portfolio | Medium | Income fluctuates, valuation difficult |
| GmbH shares | High (family GmbH) | Voting rights can be arranged |
| Partnership interest | Complex | Check co-entrepreneur status |
| Cash / bank balance | Low | Niessbrauch civilly unusual |
Real estate works particularly cleanly because the annual value can be objectively pinned down through the rent index or a valuation report.
Strategy: using the 10-year Freibetraege multiple times
The Schenkung Freibetraege are available again every ten years per parent and per child. Anyone who cleverly combines the reservation Niessbrauch with the 10-year period for Schenkungen can transfer larger assets successively tax-free.
A 55-year-old entrepreneur can theoretically gift his son three times EUR 400,000 — at 55, 65 and 75. At each transfer the reservation Niessbrauch additionally reduces the tax value. In total, transfers of EUR 2 million and more become almost tax-free in this way.
For more detail on the Freibetraege, see our piece on the Schenkung Freibetrag 2026.
Pitfalls and structuring tips
Things that regularly go wrong with clients — and how to avoid them:
1. Wrongly calculated annual value
The annual value is the net rent after operating costs (management, maintenance, insurance). Anyone who uses the gross rent risks a correction by the tax office — and a higher tax than planned.
2. Forgetting the Eintragung in the Grundbuch
The reservation Niessbrauch has to be entered in the Grundbuch (§ 873 BGB). The mere contractual agreement in the notarial deed is not enough — and is not insolvency-proof in the case of death.
3. Failure to notify the tax office
Every Schenkung has to be notified to the tax office within three months (§ 30 ErbStG) — even where no tax is due. What happens if this deadline is missed I have explained in detail in the piece Schenkung not notified.
4. Overlooked Pflichtteil (compulsory share, § 2303 BGB) claims
The Niessbrauch does not always block the Pflichtteilsergaenzung (claim for supplementation, § 2325 BGB). If the donor keeps comprehensive rights of use, the ten-year period under § 2325 Abs. 3 BGB may, under settled BGH case law, not start to run at all. A complete strategy therefore also covers Schenkung to children with Pflichtteil protection.
5. Tax correction on lapse
If the Niessbrauch holder dies early, the reduced Schenkungsteuer stands. If by contrast the Niessbrauch is cancelled by mutual agreement before time, the tax office can carry out a correction of the capital value (§ 14 Abs. 2 BewG).
Recent case law
The fiscal courts back the administration's line: with a so-called subordinate Niessbrauch — where a second Niessbrauch only takes effect after the first holder's death — the capital value is calculated and taxed separately (FG Munich, BeckRS 2025, 33860). Anyone planning multi-tier family Niessbrauch structures should keep this case law in mind.
Practical case: family M. from the Taunus
A concrete client case from 2026: family M., two daughters, a let condominium in the Frankfurt Westend.
- Market value: EUR 1.2 m
- Donor (father): 58 years old, multiplier 14.832
- Net annual rent: EUR 38,000
- Capital value of the Niessbrauch: 38,000 × 14.832 = EUR 563,616
- Schenkung of 50 percent each to both daughters
Tax value per daughter: (1,200,000 – 563,616) ÷ 2 = EUR 318,192. Both stay below the Freibetrag of EUR 400,000 — zero Schenkungsteuer. Had the father gifted without a Niessbrauch, the two daughters together would have paid around EUR 60,000 in Schenkungsteuer.
What I often see with clients: simply reading the multiplier table cleanly and correctly establishing the rent index changes the strategy by six-figure amounts. Every hour of preparation pays off here.
Frequently asked questions
How high is the tax saving from the Niessbrauch typically?
The saving lies between 30 and 70 percent of the Schenkungsteuer that would otherwise be due. The exact figure depends on the donor's age (younger = higher), on the annual value and on the tax rate. For a 60-year-old with an EUR 800,000 property a saving of EUR 50,000 is realistic.
What is the difference between Niessbrauch and Wohnrecht?
The Niessbrauch is broader: it allows any use, including letting. The Wohnrecht (right of residence, § 1093 BGB) only allows own use. Anyone wanting to live in the gifted house themselves can agree a Wohnrecht instead of a Niessbrauch — the tax deduction effect is similar.
Can the Niessbrauch be revoked or cancelled?
Yes. The reservation Niessbrauch lapses automatically on the death of the beneficiary. Earlier cancellation is possible but has tax consequences: the tax office reviews a subsequent taxation under § 14 BewG. A revocation reservation can also be anchored in the notarial deed — for example for the case where the donee wants to sell the property.
Do I have to pay income tax on the rents?
Yes. The Niessbrauch holder remains the landlord for income tax purposes — the rents continue to be part of their income from letting and leasing (§ 21 EStG). This is often even intended because the donor can use the higher allowance from old-age pension or other income.
Does the Niessbrauch block the 10-year period for the Pflichtteil?
In tendency yes, but not necessarily. If the donor reserves rights so comprehensive that economically no genuine asset transfer takes place, the ten-year period under § 2325 Abs. 3 BGB does not start to run. With a comprehensive reservation Niessbrauch a complementary Pflichtteil strategy is indispensable.
Does the Niessbrauch also apply to Schenkungen to grandchildren?
Yes, all degrees of kinship. For grandchildren the Freibetrag is EUR 200,000 (§ 16 Abs. 1 Nr. 3 ErbStG). The Niessbrauch deduction works identically — and can be particularly effective here because the lower Freibetrag would otherwise quickly be exceeded.
What happens if the property has to be sold?
The Niessbrauch goes with it on the dingliches level. Buyers rarely accept that — sales are practically only possible if the holder agrees and waives their right (deletion from the Grundbuch). Notarial deeds should always contain rules for the sale case.
Advisory offer: planning the reservation Niessbrauch concretely
Whether the reservation Niessbrauch pays off for your situation depends on many factors: the donor's age, the asset structure, the family constellation and the long-term goals. There is no blanket answer.
In my office in Liederbach (near Frankfurt) I have been advising families and entrepreneurs on tax-optimised asset transfer for years — as a second opinion or as ongoing support. If you want clarity on your structuring options, please feel free to arrange a non-binding first meeting.
Book an appointment online or contact me by email at enders@tes-partner.de — I will respond within 24 hours.
Further detailed answers
- Niessbrauch 2026: definition, tax, reservation, practice — main guide to the cluster
- Calculating the Niessbrauch — value reduction table and practical examples
- Niessbrauch disadvantages for children — 7 points from practice
- Niessbrauch on a house — transfer, tax, strategies
- Niessbrauchsrecht in the Grundbuch — Eintragung and effect
- Topic hub Niessbrauch
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