- German law knows three distinct ten-year clawback periods for Schenkungen (gifts under German law): the welfare-office recovery (§ 528 BGB), the Pflichtteilsergaenzung (compulsory-share top-up under § 2325 BGB) and the Schenkungsteuer (German gift tax, § 14 ErbStG) zusammenrechnung
Most clients only come to us once the welfare office has already sent the first letter. By then the room for manoeuvre is usually gone. Anyone who, by contrast, knows the right one of the three ten-year periods early enough — and triggers it — transfers wealth to the next generation during their lifetime, and pulls it out of the later reach of the state.
Bottom line (position 2026): If you want to transfer more than EUR 400,000 per child, you have to synchronise all three ten-year periods: § 528 BGB protects you against welfare-office recovery after ten years (only without a Niessbrauchsvorbehalt — a reserved usufruct, where the donor keeps the right to use the asset!); § 2325 BGB lets the Pflichtteilsergaenzungsanspruch melt away by 10 % per year; and § 14 ErbStG renews the Schenkungsteuer-Freibetrag. Rule of thumb: from the age of 65, the full ten-year protective effect becomes statistically tight — anyone who only starts then will, with high probability, no longer have a fully time-barred set of assets by the time long-term care kicks in.
The three ten-year periods in overview
Anyone transferring wealth during their lifetime keeps running into "the" ten-year period. What many do not know: there are three different periods, each with its own legal consequence and method of calculation — gift-tax aggregation (§ 14 ErbStG), Pflichtteilsergaenzung melt-down (§ 2325 BGB) and welfare-office recovery (§ 528 BGB). "The ten-year period for Schenkungen" is a collective term for these three independent statutory regimes, each with its own conditions and its own protective effect.
| Period | Legal basis | Subject matter | Consequence after ten years |
|---|---|---|---|
| Welfare-office recovery | § 528 BGB, § 93 SGB XII | Welfare office claws back the Schenkung | No further recovery possible |
| Pflichtteilsergaenzung | § 2325 BGB | Disinherited heirs claim the value of the Schenkung | Schenkung is no longer counted |
| Schenkungsteuer | § 14 ErbStG | Freibetrag is recalculated | Freibetrag is fully available again |
The periods run independently of each other. A Schenkung can be closed off for Schenkungsteuer purposes after ten years, while the Pflichtteilsergaenzungsanspruch may still exist if it is calculated on a different basis — for instance with Schenkungen between spouses. Understanding these differences is the foundation of any wealth transfer.
When all three periods overlap
In practice it is typical for a single Schenkung to fall simultaneously within all three periods. The catch: they can start and finish at different times. Example: a real-estate Schenkung with a Niessbrauchsvorbehalt (reserved usufruct in favour of the donor) in 2026 starts the ten-year gift-tax clock immediately, but the welfare-law period under § 528 BGB only once the Niessbrauch falls away. For Pflichtteil purposes a third calculation may apply, depending on the constellation. Anyone looking at just one of the periods is structurally planning blind.
Welfare-office recovery: when the welfare office claws back Schenkungen
The biggest worry for many families: what happens if the donor needs long-term care after the Schenkung and cannot meet the care costs from their own resources?
The legal position (§ 528 BGB, § 93 SGB XII)
If, after the Schenkung, the donor is no longer able to maintain themselves, they can claw back the Schenkung on grounds of impoverishment (§ 528 BGB). In practice the claim is exercised by the welfare authority once it has transferred the claim to itself under § 93 SGB XII. This transfer is done by administrative act — the donee receives a letter from the welfare office asking for repayment.
The ten-year period
The clawback claim under § 528 BGB is subject to a ten-year cut-off period running from the moment the Schenkung is performed (§ 529 (1) BGB). Once those ten years have run, no further clawback is possible, even if the donor becomes fully impoverished. It is a true cut-off period with a calendar-based expiry — suspension or interruption as with limitation periods is not available.
What does "performance of the Schenkung" mean?
Caution: the term "performance of the Schenkung" is construed DIFFERENTLY for welfare-office recovery (§§ 528, 529 BGB) and for the Pflichtteilsergaenzung (§ 2325 BGB) — and this is the most common advisory pitfall in practice.
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Welfare-office recovery § 529 (1) BGB: what counts is the legal-property performance. The ten-year period begins with the application to enter the transfer in the Grundbuch — even where the donor reserves a Niessbrauch. The BGH expressly held this in its judgment of 19 July 2011 (X ZR 140/10): "The reservation of a lifelong and comprehensive Niessbrauch is not damaging for the start of the ten-year period under § 529 BGB." The Niessbrauch therefore does NOT suspend the welfare-office period.
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Pflichtteilsergaenzung § 2325 (3) BGB: here the economic performance is decisive. Under the settled BGH case law (IV ZR 30/76 and subsequent decisions) the period does not begin to run as long as the donor retains economic control through the Niessbrauch. Here the Niessbrauch does suspend the period.
Practitioner's note: Anyone who gifts a property with a Niessbrauchsvorbehalt is protected AGAINST the Pflichtteilsergaenzung — NOT against welfare-office recovery. A client who wants to switch off the welfare-office risk has to wait ten years WITHOUT a Niessbrauch. That is the strategically most important distinction when transferring the family home.
Differentiation: Niessbrauch, Wohnrecht, clawback right
Not every reservation works the same way. Important: the following effects apply to the PFLICHTTEILSERGAENZUNG period (§ 2325 BGB). For the welfare-office period (§ 529 BGB) the ten-year clock runs in all the following constellations, because there the legal-property performance is decisive (BGH X ZR 140/10).
- Full Niessbrauch (use and rental income): Pflichtteil period regularly does not start. Welfare-office period runs nonetheless.
- Pro-rata Niessbrauch (partial usufruct): Pflichtteil period runs pro rata.
- Comprehensive Wohnrecht (more than 50 % of the residential area, BGH IV ZR 474/15): Pflichtteil period regularly does not start. Welfare-office period runs nonetheless.
- Limited Wohnrecht (part of the property, fixed term): Pflichtteil period can start.
- Contractual clawback reservation (in the deed): period runs, but the Schenkung can be reversed.
Care costs in 2026: how high the resident's contribution in a home really is
Anyone who wants to assess the ten-year period soberly has to understand the actual euro figures it defends against. The German nationwide average for the einrichtungseinheitlicher Eigenanteil (uniform resident's contribution, EEE) in a care home in 2026 is around EUR 2,984 per month. On top come investment costs and board and lodging. Most homes therefore produce resident's costs of EUR 2,500 to EUR 3,500 — and noticeably more in the upper segment.
The supplements under § 43c SGB XI that have been in force since 2022 ease the burden in stages tied to length of stay: 15 % in the first year, 30 % in the second, 50 % in the third and 75 % from the fourth year onwards. These supplements only apply to the care-related portion of the resident's contribution, not to board and lodging.
| Pflegegrad (German care-need level) | Benefit 2026 (residential) | Typical resident's contribution |
|---|---|---|
| Pflegegrad 2 | EUR 805 | approx. EUR 2,500 |
| Pflegegrad 3 | EUR 1,319 | approx. EUR 2,700 |
| Pflegegrad 4 | EUR 1,855 | approx. EUR 2,900 |
| Pflegegrad 5 | EUR 2,096 | approx. EUR 3,000 |
Anyone with around EUR 3,000 in uncovered care costs per month and only EUR 1,800 of pension lives with a EUR 1,200 gap. That gap is plugged by the welfare office — and this is exactly where recovery under § 528 BGB kicks in.
How the welfare office learns about Schenkungen
Many underestimate how systematically the welfare authority uncovers Schenkungen. With every application for welfare assistance a comprehensive proof of means is required, typically for the past ten years. The following are examined:
- Bank statements and credit-card statements
- Grundbuch extracts (transfers of ownership are documented there)
- Tax returns and Schenkungsmeldungen (gift notifications) to the tax office
- Securities portfolios and insurance policies
- Self-declarations of family members (with a duty to cooperate!)
False or incomplete declarations may be punishable under § 263 StGB (German Criminal Code) as welfare-benefit fraud. In practice, the welfare office routinely requests bank statements for the last ten years. Conspicuous transfers of several thousand euros have to be explained — and often lead to the uncovering of past Schenkungen.
Worked example: care need after 8 years
The Schmidt family. In 2018 the father transfers his house (value: EUR 400,000) to his daughter, with no Niessbrauchsvorbehalt. In 2026 the father becomes dependent on long-term care. Care-home costs come to EUR 4,500 per month. His pension is EUR 1,800. The shortfall of EUR 2,700 per month has to be covered by the welfare office in the first instance.
Because the Schenkung is less than ten years ago, the welfare office can pursue the daughter. The clawback is capped at the value of the Schenkung — that is, up to EUR 400,000. In practice the daughter will be required to pay the uncovered care costs on an ongoing basis until the value of the Schenkung is used up. At EUR 2,700 per month, this amount would arithmetically be exhausted after about twelve years.
Had the father waited two more years, or made the Schenkung two years earlier, the ten-year period would have expired and no clawback would have been possible. This day-precise view shows why timing in succession planning is so critical.
Hardship clause: when the welfare office refrains
According to § 528 (1) sentence 2 BGB, clawback is excluded if it would represent an "undue hardship" for the donee. The case law construes this clause restrictively. Recognised hardship cases are in particular those in which the donee is themselves in need of care or unable to work, or where the return would threaten their own economic existence. Mere inconvenience or simple loss in value of the object is not enough.
Pflichtteilsergaenzungsanspruch: the melt-down
The Pflichtteilsergaenzungsanspruch under § 2325 BGB is the second central ten-year period. It deals with cases in which an erblasser (decedent under German law) has gifted away assets during their lifetime and thereby reduced the estate to the disadvantage of those entitled to a Pflichtteil. A full overview of the Pflichtteil and its calculation for children is in the linked guide. Anyone who wants to switch off the Pflichtteil permanently can — instead of waiting for the period — enter into a Pflichtteilsverzicht (waiver of compulsory share) contract with a strategic settlement.
How does the melt-down work?
Under § 2325 (3) BGB the Schenkung is added back to the estate, but at an annually decreasing percentage. This so-called pro-rata-temporis rule has applied since the 2010 inheritance-law reform (before that: a rigid ten-year cliff edge):
| Years since the Schenkung | Counted towards the Pflichtteil |
|---|---|
| In the 1st year before the inheritance | 100 % |
| In the 2nd year | 90 % |
| In the 3rd year | 80 % |
| In the 4th year | 70 % |
| In the 5th year | 60 % |
| In the 6th year | 50 % |
| In the 7th year | 40 % |
| In the 8th year | 30 % |
| In the 9th year | 20 % |
| In the 10th year | 10 % |
| After 10 years | 0 % |
According to the prevailing view, the melt-down happens in annual 10 % steps, although some commentators favour a calculation by months or even by days. In practice, most courts work with clear annual stages, measured from the date on which the Schenkung was performed.
Worked example: Pflichtteilsergaenzung
The Erblasser (widower with two children) gave his son EUR 300,000 in 2020. He dies in 2026 (six years later). Estate value: EUR 200,000. The daughter has been disinherited and is claiming her Pflichtteil plus Pflichtteilsergaenzung. As there is no surviving spouse, the statutory share per child is one half, so the Pflichtteil is one quarter.
| Item | Calculation | Amount |
|---|---|---|
| Estate | EUR 200,000 | |
| Schenkung (6 years, 50 % counted) | 300,000 x 50 % | EUR 150,000 |
| Total calculation base | 200,000 + 150,000 | EUR 350,000 |
| Daughter's Pflichtteil (1/4) | 350,000 / 4 | EUR 87,500 |
| Of which Pflichtteil from the estate | 200,000 / 4 | EUR 50,000 |
| Of which Pflichtteilsergaenzung | 87,500 − 50,000 | EUR 37,500 |
Had the Erblasser lived four years longer, the Schenkung would have melted down completely and the daughter would have received only EUR 50,000 of Pflichtteil from the estate. That difference of EUR 37,500 shows the financial value of early wealth transfer.
Special case: Schenkungen to the spouse
For Schenkungen to the spouse, the ten-year period only starts running on dissolution of the marriage — that is, by divorce or death (§ 2325 (3) sentence 3 BGB). This means: Schenkungen between spouses are always counted in full (100 %) for purposes of the Pflichtteilsergaenzungsanspruch, regardless of how long ago they were made. This rule is frequently overlooked in early-start Nachfolgeplanung (succession planning) and is one of the most common advisory errors with spousal Schenkungen.
Valuation date: lowest-value principle
For the Pflichtteilsergaenzung, the so-called lowest-value principle applies: the relevant figure is the lower of the value at the time of the Schenkung (indexed up to the inheritance) and the value at the time of the inheritance. With cash Schenkungen the gifted amount is uplifted by the consumer-price index. With Schenkungen in kind, such as real estate, the lower of the two values is applied — this protects against excessive burden where real-estate prices have risen sharply.
Schenkungsteuer: the ten-year rhythm of the Freibetrag in 2026
The third ten-year period concerns Schenkungsteuer (German gift tax, governed by ErbStG, same brackets and exemptions as inheritance tax). Under § 14 ErbStG all Schenkungen by the same donor to the same donee within ten years are aggregated. Once the ten years have run, the Freibetrag is fully available again.
Freibetraege by degree of relationship (position 2026)
A full overview of the Schenkungsfreibetraege 2026 with table and notification duty is set out in a separate guide. The most important figures under § 16 ErbStG:
- Children: EUR 400,000 per parent
- Grandchildren: EUR 200,000 (where the parents are alive), EUR 400,000 (where the parents have predeceased)
- Spouses: EUR 500,000
- Parents (in the inheritance case): EUR 100,000
- Siblings, nieces/nephews: EUR 20,000
Notification duty: three months, otherwise sanctions
Under § 30 ErbStG every Schenkung has to be notified to the competent inheritance-tax office within three months of knowledge. The notification duty falls on both the donor and the donee. Breaches can in the worst case be treated as Steuerhinterziehung (tax evasion under § 370 AO) with surcharges and interest of 6 % per year (§ 233a AO). Even for Schenkungen below the Freibetrag the notification is often advisable, in order to document the start of the ten-year clock with evidential security.
Backward calculation of the ten-year period (BFH line)
Important for practical calculation: the Bundesfinanzhof (Federal Fiscal Court, BFH) clarified in its judgment of 28 March 2012 (case ref. II R 43/11) that the ten-year period under § 14 (1) sentence 1 ErbStG is to be calculated backwards. The day of the latest acquisition is counted. § 108 (3) AO (postponement to the next working day where the deadline falls on a weekend) does not apply. Concretely: anyone who wants to use the Freibetrag threshold again on 15 May 2026 needs their last gift-tax-relevant previous Schenkung to have taken place no later than 14 May 2016 — exactly ten years minus one day.
What you can transfer tax-free (depending on family size)
The following table shows what a couple of parents can move entirely tax-free, in two Schenkung waves (year 1 + year 11), depending on the number of children:
| Family | 1 child | 2 children | 3 children | 4 children |
|---|---|---|---|---|
| Wave 1 (year 1) | EUR 800,000 | EUR 1,600,000 | EUR 2,400,000 | EUR 3,200,000 |
| Wave 2 (year 11) | EUR 800,000 | EUR 1,600,000 | EUR 2,400,000 | EUR 3,200,000 |
| With grandchildren 200k each | +EUR 400,000 per grandchild × 2 waves | as for 1 child | ||
| Total over 20 years without grandchildren | EUR 1,600,000 | EUR 3,200,000 | EUR 4,800,000 | EUR 6,400,000 |
Figures are based on § 16 (1) no. 2 ErbStG (EUR 400,000 Freibetrag per child per parent) and § 14 (1) ErbStG (ten-year rhythm). Generation-skipping planning involving grandchildren significantly increases the transferable sums — each grandchild adds EUR 200,000 per donor.
Kettenschenkung (chain gift): using the Freibetrag multiple times
Strategic planning allows the Freibetrag to be used again and again every ten years. A pair of parents with two children can transfer EUR 3,200,000 tax-free over 20 years:
| Time | Donor | Donee | Freibetrag |
|---|---|---|---|
| Year 1 | Father | Child 1 | EUR 400,000 |
| Year 1 | Father | Child 2 | EUR 400,000 |
| Year 1 | Mother | Child 1 | EUR 400,000 |
| Year 1 | Mother | Child 2 | EUR 400,000 |
| Year 11 | Father | Child 1 | EUR 400,000 |
| Year 11 | Father | Child 2 | EUR 400,000 |
| Year 11 | Mother | Child 1 | EUR 400,000 |
| Year 11 | Mother | Child 2 | EUR 400,000 |
| Total | EUR 3,200,000 |
Use the Erbschaftsteuer calculator to model your individual tax burden.
Why a non-declared Schenkung causes problems with the tax office is explained in the linked guide.
BFH case law on Kettenschenkung via the spouse
The mittelbare Schenkung (indirect gift) routed via the spouse is a popular structuring model — but legally delicate. The Bundesfinanzhof has held, in settled case law (line set by BFH II R 37/11, judgment of 18 July 2013): if the spouse only briefly receives the gift and passes it on immediately, without ever having exercised their own power of disposition, this constitutes a direct Schenkung from the original donor to the ultimate recipient. The doubling of the Freibetrag is then not accepted.
For the model to hold up legally, the intermediate spouse must obtain real power of disposition. In practice that means:
- The spouse must have their own genuine room for decision (no "pass-through")
- A minimum interval of several weeks between the Schenkungen
- Ideally an independent decision on use, or an interim period of interest accrual
- No pre-arranged forwarding plan ("inner link")
The tax office now scrutinises these indicators very closely. In case of doubt the BFH applies an economic overall analysis of the simultaneous money movements.
What does NOT protect against clawback
The ten-year period is surrounded by myths. The following arrangements do not, contrary to a widespread assumption, reliably protect:
1. Niessbrauch without genuine surrender — works only for the Pflichtteil, NOT for the welfare office
A Niessbrauchsvorbehalt protects DIFFERENTLY against the three ten-year periods — and this is the most common advisory trap in practice:
- Pflichtteilsergaenzung § 2325 (3) BGB: the Niessbrauch suspends the period. As long as the donor takes the rental income or lives in the property, they have not given it up economically. The Pflichtteil period therefore does not run (BGH IV ZR 30/76 and subsequent decisions).
- Welfare-office recovery § 528 / § 529 BGB: the period runs DESPITE the Niessbrauchsvorbehalt. BGH X ZR 140/10 (19 July 2011) decided this clearly: the reservation of a Niessbrauch is not damaging for the start of the ten-year period under § 529 BGB. Welfare-protection therefore does NOT arise through a Niessbrauch.
- Schenkungsteuer § 14 ErbStG: the period likewise runs despite a Niessbrauch. The Niessbrauch here only acts through the value discount (§ 25 ErbStG).
Anyone who thinks that a Schenkung with a Niessbrauch is "all sorted" overlooks the welfare-office lever. The exact requirements and the structuring models are in the guide Niessbrauch with a Schenkung: saving tax with a reservation arrangement.
2. Schenkungen to children-in-law
Schenkungen to children-in-law are treated by the welfare office in exactly the same way as other Schenkungen. The detour via the child-in-law offers no protection — on the contrary: in tax terms, the lower Freibetrag of tax class II (EUR 20,000) applies, which leads to a higher Schenkungsteuer.
3. Sham contracts and undervaluation
A sale contract at a price clearly below market value is treated for tax purposes as a mixed Schenkung. The difference to market value counts as a Schenkung and is subject to all three ten-year periods. The tax office routinely checks intra-family real-estate sales for market adequacy — usually by the value determined under BewG or by requiring an expert valuation.
4. Kettenschenkung via the spouse with too tight a sequence
The Schenkung to the spouse so that the spouse then gifts on to the children is a widespread model for doubling the Freibetraege. But beware: where the onward gift to the children is so tightly linked, in time and substance, to the original Schenkung that an indirect Schenkung is found, the tax administration will not accept the Freibetraege twice over. Details on Schenkungen to children using the Freibetrag and their tax treatment are in the linked guide.
5. Concealed Schenkungen via cash
Cash transfers without a documented background are increasingly being scrutinised by the tax office. Where the amounts are conspicuous (over EUR 10,000) and no plausible business basis stands behind them, the transaction is routinely qualified as an undeclared Schenkung — with potential criminal and tax-law consequences.
What does protect
Anstandsschenkungen (customary gifts, § 534 BGB)
Schenkungen that respond to a moral duty or social custom are exempt from clawback. Typical examples: birthday gifts, wedding gifts of appropriate size. The threshold usually lies in a few thousand euros and depends on the donor's financial position. As an instrument for substantial wealth transfer Anstandsschenkungen are unsuitable.
Early transfer without reservations of use
The safest path: transfer assets at least ten years before any potential care need and do without Niessbrauch, Wohnrecht or similar reservations. Then the period runs reliably. The challenge: nobody can know ten years in advance when the need for care will set in. Anyone who gifts at 60 and needs care at 75 is on the safe side — anyone who gifts at 70 and needs care at 78 is not.
Waiver of clawback by the welfare office
In rare cases the welfare office will waive recovery if enforcement would represent an undue hardship for the donee (§ 528 (1) sentence 2 BGB). That is the case where the donee would themselves no longer be able to provide for their own appropriate maintenance. The standard is tight — mere loss of value through return is not enough.
Long-term care insurance and self-provision
A private long-term care top-up insurance can plug the funding gap in the care case. If the donor can cover their care costs from their own means (pension, insurance, savings), no welfare-assistance claim arises — and so no clawback right. With Pflegegrad 5 in residential care, monthly resident's contributions of EUR 2,500 to EUR 3,500 can arise — this gap is closed by a good top-up insurance. Models: care daily-rate (Pflegetagegeld), care pension (Pflegerente) or the state-supported Pflege-Bahr (§§ 126 ff. SGB XI), the latter of which rarely suffices in practice.
Worked structuring example: family plans 20 years ahead
The Weber family. Parents, both 55, two children (25 and 28). Assets: own home (EUR 600,000), rental property (EUR 500,000), cash (EUR 400,000). Both parents are healthy, but the grandmother has recently become dependent on care.
Step 1 (immediately): first Schenkung round
Transfer of the rental property to both children, one half each. Value per child: EUR 250,000. Lies below the Freibetrag of EUR 400,000 per child and per parent. No Schenkungsteuer. No Niessbrauch, so that the ten-year period starts immediately.
Step 2 (year 5): transfer cash
EUR 100,000 to each child from each parent. Total: EUR 400,000. Lies within the running ten-year Freibetraege (250,000 + 100,000 = EUR 350,000 per child per parent — under EUR 400,000).
Step 3 (year 11): use the Freibetraege again
The first Schenkung round is now more than ten years ago. The Freibetraege are available again. Transfer of the home or further assets up to the Freibetrag.
Result after 20 years
- Total assets of EUR 1,500,000 transferred tax-free
- Ten-year welfare-recovery period from the first Schenkung has run
- Pflichtteilsergaenzungsansprueche have melted down fully
- The parents have taken out a long-term care top-up insurance in good time
What you should concretely do in 2026
Anyone planning a substantial wealth transfer should treat the following steps as a minimum standard:
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Draw up a wealth statement. Which assets are to be transferred? Real estate (rented or not), capital assets, business shareholdings? Each type of asset follows its own rules.
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Plan the time horizon. Which phase of life lies ahead? Anyone planning at 55 realistically has 15–20 years to exhaust two full Freibetrag cycles. Anyone starting at 70 statistically has only one chance at a fully expired ten-year period.
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Notarised Schenkung contracts without exaggerated reservations. Niessbrauch and Wohnrecht are emotionally understandable, but they cut out the welfare-protection effect of the ten-year period. Alternative: clawback reservation in case of insolvency, divorce or pre-deceasing (leaves the running of the period intact).
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Take out long-term care top-up insurance. The earlier, the cheaper. At 55 still insurable without problem — at 65 often only with health exclusions.
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Notify the Schenkung. Within three months to the inheritance-tax office (§ 30 ErbStG). That documents the start of the period with evidential security and protects against later disputes.
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Involve a Steuerberater (German tax advisor). Synchronising the three periods is specialist knowledge. A planning error can cost six-figure sums.
Frequently asked questions
What does the ten-year period for Schenkungen mean?
The ten-year period for Schenkungen covers three distinct statutory ten-year periods rather than a single concept: welfare-office recovery under § 528 BGB (clawback by the welfare office), the Pflichtteilsergaenzungsanspruch under § 2325 BGB (melt-down rule) and gift-tax aggregation under § 14 ErbStG (renewal of the Freibetrag). In concrete terms: after ten years a Schenkung is finally safe from welfare-law clawback, has fully melted down for Pflichtteil purposes and falls out of gift-tax aggregation.
Can you get around the ten-year period for Schenkungen?
No. The ten-year period is a statutory rule that cannot be set aside by contract. What is possible: starting the period running in good time through early transfers without reservations of use. Attempts to circumvent the period through sham transactions or concealed Schenkungen are legally invalid and can have criminal and tax-law consequences.
When does the ten-year period start with a real-estate Schenkung subject to Niessbrauch?
This depends on which of the three ten-year periods you mean:
- Pflichtteilsergaenzung § 2325 (3) BGB: under a comprehensive Niessbrauchsvorbehalt the period does not start — it only begins to run once the Niessbrauch falls away (waiver or death). This is the standard case most clients have in mind.
- Welfare-office recovery § 528 / § 529 BGB: the period starts with the legal-property performance (application for a Grundbuch change) — and it does so DESPITE the Niessbrauchsvorbehalt (BGH X ZR 140/10, 19 July 2011).
- Schenkungsteuer § 14 ErbStG: likewise starts with performance; the Niessbrauch only acts through the value discount under § 25 ErbStG.
A pure Wohnrecht without a right to let only suspends the § 2325 BGB period if it covers a large part of the residential area (BGH IV ZR 474/15: more than 50 percent). With a limited Wohnrecht the Pflichtteil period can run despite the right of residence. For the welfare-office period this differentiation does not apply — there the period runs irrespective of the Wohnrecht.
What happens if the donor goes into a care home before the ten years have run?
If the donor cannot meet their own living costs and the care costs from their own resources, the welfare office steps in first. It can then require repayment from the donee up to the value of the Schenkung (§ 528 BGB in conjunction with § 93 SGB XII). The clawback is capped at the value of the Schenkung. The donee never has to give back more than they have received and can typically also meet the clawback by paying the uncovered care costs on an ongoing basis.
Does the ten-year period also apply to Schenkungen between spouses?
For Schenkungsteuer and welfare-office recovery: yes, the ten-year period applies. For the Pflichtteilsergaenzungsanspruch: no. With Schenkungen to the spouse, the period only starts under § 2325 (3) sentence 3 BGB on dissolution of the marriage. As long as the marriage continues, spousal Schenkungen are always counted at 100 % for Pflichtteilsergaenzung — even 30 years on.
How do I protect myself against the welfare office?
The safest protection: Schenkungen without any reservation of use at least ten years before a potential care need. Plus: take out a private long-term care top-up insurance so the donor can fund their care costs from own resources. No sham transactions or circumvention constructions — these are legally invalid and can lead to reversal and to criminal prosecution.
Are Schenkungen below the Freibetrag still counted towards the ten-year period?
Yes. The ten-year period for aggregation under § 14 ErbStG applies regardless of whether the Schenkung was above or below the Freibetrag. All Schenkungen by the same donor to the same donee within ten years are aggregated. Only then is it tested whether the Freibetrag has been exceeded. Important: even small unreported Schenkungen can become taxable if uncovered later.
How does the welfare office find out about past Schenkungen?
In a welfare-assistance application a comprehensive proof of means for the last ten years is required. Bank statements, Grundbuch extracts, tax documents and Schenkungsmeldungen to the tax office are examined. The applicant is under a statutory duty to cooperate (§ 60 SGB I); false or incomplete declarations may be punishable under § 263 StGB as welfare-benefit fraud. Conspicuous payment flows of EUR 5,000 to EUR 10,000 are routinely queried, and are in many cases disclosed by banks on request.
What happens to Schenkungen that took place more than 30 years ago?
Schenkungen the performance of which is more than 30 years ago are in practice fully "switched off": welfare-office recovery is extinguished after ten years, the Pflichtteilsergaenzungsanspruch has melted down completely after ten years (for Schenkungen outside the marriage) and the gift-tax aggregation no longer captures them. Exception: Schenkungen between spouses remain relevant for Pflichtteil purposes as long as the marriage continues — no matter how long ago.
Conclusion: three periods, one principle
The ten-year period for Schenkungen is not a single concept; it covers three different rules with different conditions and different legal consequences. Anyone transferring wealth has to keep all three in view — welfare-office recovery, Pflichtteilsergaenzung and Schenkungsteuer.
The principle: the earlier you start, the better. Anyone who plans 20 years in advance can transfer substantial assets tax-free and at the same time protect them from welfare-office access. Anyone who only acts under time pressure has less room for structuring — and, in the worst case, none at all.
Use the Erbschafts-Navigator to place your own situation. Or have an experienced Steuerberater give you a second opinion (Zweite Meinung) before you transfer wealth.
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