Gifts in Long-Term Care: Welfare-Office Clawback 2026 (§ 528 BGB)

What is the clawback for the donor's impoverishment?

The clawback for impoverishment (Rückforderung wegen Verarmung) is the donor's statutory claim to demand the return of a gift to the extent that, after the gift has been completed, he is unable to pay for his appropriate maintenance and to fulfil the maintenance obligations imposed on him by law, for example towards relatives or his spouse (§ 528 (1) BGB). Long-term care with high nursing-home costs can be such a trigger. The claim is directed against the donee and is measured by the rules on the surrender of unjust enrichment.

The scope matters: the claim only exists "to the extent" that the donor is unable to do so. § 528 (1) sentence 2 BGB expressly allows the donee to avert the return by paying the amount required for maintenance. With a gifted property, the donee can thus keep ownership if he pays this amount instead.

Florian Enders explains the clawback of a gift in long-term care by the welfare office during a client meeting

Why the welfare office gets involved at all

The clawback claim can be asserted not only by the donor himself but also by the social assistance authority (Sozialhilfeträger) once it has transferred the claim to itself. If the welfare office pays Hilfe zur Pflege because the pension and assets of the person in need of care do not cover the nursing-home costs, it can transfer the civil-law claim under § 528 BGB to itself. The legal basis is § 93 SGB XII.

Under § 93 (1) SGB XII, the social assistance authority can, by written notice to the donee, cause the claim to pass to it up to the amount of its expenditure. This applies for the period for which benefits are provided and only within the limits of § 93 (1) sentence 3 SGB XII. The transfer is an administrative act (Verwaltungsakt); an objection or an action for annulment against it has no suspensive effect (§ 93 (3) SGB XII). In concrete terms, for the donee this means: the letter comes from the authority, not from a family member.

Practical tip: It would be a mistake to assume that the welfare office can only reach the assets of the person in need of care himself. Through the transfer under § 93 SGB XII the office can turn to the donee, for example the child or grandchild who received the property years ago.

The ten-year period under § 529 (1) BGB

Under § 529 (1) BGB the clawback claim is excluded if, at the time the donor's need arose, ten years had passed since the performance of the gifted object. What counts is therefore the interval between two points in time: the performance and the moment the need arose. Once this interval has been reached, the welfare office comes away empty-handed with the transferred claim, even if the donor lives permanently in a nursing home.

The Federal Court of Justice has decided when performance is effected for a property: it is sufficient that the donee, after the gift contract has been concluded in the proper form and after the Auflassung (the agreement on the transfer of land ownership), has filed an application for registration with the land registry (BGH, judgment of 19.07.2011, X ZR 140/10, headnote 1). According to this, the later transfer in the land register is not decisive; what is required is the acquirer's own application. How the ten years are calculated to the exact day is not covered in this article.

§ 529 (1) BGB names a further ground for exclusion: the claim is also excluded if the donor brought about his need intentionally or through gross negligence. Whether this is the case is a question of the individual case.

In addition, § 529 (2) BGB contains a separate limit in favour of the donee: the claim is excluded to the extent that the donee, taking his other obligations into account, is unable to return the gift without endangering his maintenance appropriate to his station (standesmäßiger Unterhalt) or the fulfilment of the maintenance obligations imposed on him by law. This limit protects the donee against his own hardship.

This period has nothing to do with the tax aggregation under § 14 ErbStG. You will find further information on ten-year periods for gifts in the article Gift: ten-year period. This article deliberately stays with the clawback claim.

Does a reserved usufruct protect against the welfare office?

When giving away a property, many donors reserve a lifelong usufruct so that they can keep living in the house or keep receiving the rental income. The usufruct is not a ground for excluding the clawback: § 529 BGB only names the lapse of time, need brought about intentionally or through gross negligence, and the endangerment of the donee's maintenance appropriate to his station or of his statutory maintenance obligations.

According to the BGH, a reserved right of use does not stop the ten-year period either: the start of the period under § 529 (1) BGB is not prevented by the donor reserving a lifelong right of use (X ZR 140/10, headnote 2). The BGH decided this on a reserved right of residence. Whether the same applies to an unrestricted reserved usufruct should be checked for your contract; this article does not rely on a decision specifically on usufruct.

The supplement to the compulsory share is different. Under § 2325 (3) BGB a gift is disregarded if ten years have passed since the performance of the gifted object; for a gift to the spouse, the period does not begin before the dissolution of the marriage. If the usufruct is reserved without restriction when making a gift, the gift is not deemed to have been performed according to the case law of the BGH (BGH, judgment of 29.06.2016, IV ZR 474/15; there the BGH continues its Senate judgment of 27.04.1994, IV ZR 132/93 (BGHZ 125, 395)). The period is therefore not merely suspended, it does not begin to run at all.

This leads to the most important distinction when transferring a house: an unrestricted reservation of usufruct protects neither against the supplement to the compulsory share nor against the welfare office. For the supplement to the compulsory share, it prevents the ten-year period from starting, so the gift does not drop out of the supplement after ten years. With the welfare office, it does not exclude the clawback within the ten years. For the question of how a usufruct affects tax and which structuring options exist, the usufruct guide for gifts is worth a look.

Calculation example: long-term care around eight years after the gift

The Berger family is a fictitious example. All dates and amounts are assumptions for illustration. In 2018, father Berger gives his house (market value EUR 400,000) to his daughter and reserves the usufruct. The performance within the meaning of § 529 (1) BGB, here the daughter's own application for registration after the Auflassung, takes place on 15 November 2018. On 1 September 2026 the need arises: father Berger needs long-term care (assumed care grade, Pflegegrad, 4), lives in a nursing home and has an uncovered personal share of around EUR 2,700 per month, which the welfare office initially covers.

Between the performance and the moment the need arose lie just under eight years, so not ten. The claim is therefore not excluded by lapse of time under § 529 (1) BGB. Whether the usufruct prevents the period from starting plays no role here, because the ten years have not passed either way. The welfare office can transfer the claim under § 528 BGB to itself under § 93 SGB XII and pursue the daughter. She can avert the return of the house by paying the amount required for her father's maintenance (§ 528 (1) sentence 2 BGB).

The claim would only be excluded by lapse of time if, at the time the need arose, ten years had passed since the performance. With a performance on 15 November 2018, this would not be the case before mid-November 2028; this article does not fix the exact cut-off date. The example shows why, for property gifts with a foreseeable care risk, the timing of the performance should be planned and documented. You can check in advance which gift tax falls due on a transfer of this size with the gift tax calculator.

What actually relieves the donee

Sham constructions do not help against the welfare-office clawback; only the statutory limits and clean timing do. The following points are the levers provided for in the law.

First, the lapse of time under § 529 (1) BGB. If, at the time the need arose, ten years had passed since the performance, the claim is excluded. This requires that the performance took place early enough.

Second, the limit under § 529 (2) BGB. The claim is excluded to the extent that the donee, taking his other obligations into account, cannot return the gift without endangering his maintenance appropriate to his station or the fulfilment of his statutory maintenance obligations. Whether this applies depends on your own obligations and should be checked.

Third, the limitation of scope. The gift can only be demanded to the extent that the donor is unable to pay for his appropriate maintenance and to fulfil his statutory maintenance obligations. The donee can avert the return by paying the amount required for maintenance (§ 528 (1) sentence 2 BGB). Whoever pays can avoid having to return the property itself.

Fourth, the donor's own provision. If the person in need of care can pay for his appropriate maintenance including nursing-home costs from pension, savings and a private supplementary long-term care insurance (Pflegezusatzversicherung), and can also fulfil his statutory maintenance obligations, the requirement of § 528 (1) BGB is not met, and with it there is no claim the welfare office could transfer.

What you should specifically do in 2026

Anyone who transfers a property or a larger fortune during their lifetime and wants to keep the care risk in view should observe the following steps:

1. Record the time of performance in a way that can be proven. What counts for § 529 (1) BGB is the performance of the gifted object. For land, according to BGH X ZR 140/10, the donee's own application for registration after the Auflassung is sufficient. You should document the receipt of this application at the land registry.
2. Do not plan on the usufruct as protection. For the supplement to the compulsory share, an unrestricted reserved usufruct prevents the period from starting at all (BGH IV ZR 474/15). With the welfare office, it does not exclude the clawback; the BGH decided on a right of residence that a lifelong right of use does not prevent the period from starting. How this is to be assessed for your usufruct belongs in the review.
3. Build long-term care provision early. A private supplementary long-term care insurance, taken out early, can close the funding gap so that the donor can pay for his maintenance himself.
4. Do not pay too quickly when a letter from the welfare office arrives. Have it checked whether, at the time the need arose, ten years had already passed since the performance, whether the limit of § 529 (2) BGB applies and in what amount the claim was transferred.
5. Involve a tax adviser and advice specialised in inheritance law. Social-law, compulsory-share and tax periods run independently of each other and must be planned together.

Frequently asked questions

Can the welfare office claw back a gift when the donor needs long-term care?

Yes, subject to conditions. If the donor cannot pay for his appropriate maintenance including care costs himself and the welfare office pays, it can transfer the clawback claim under § 528 BGB to itself under § 93 SGB XII up to the amount of its expenditure and assert it against the donee. This is excluded, among other cases, under § 529 BGB, for example if at the time the need arose ten years had passed since the performance.

What happens to the gift when the donor needs long-term care?

The donor can reclaim the gift on grounds of impoverishment to the extent that he is unable to pay for his appropriate maintenance including care costs and to fulfil his statutory maintenance obligations (§ 528 (1) BGB). If the welfare office pays, it can transfer this claim to itself. The donee can avert the return by paying the amount required for maintenance.

Does the ten-year period also apply with a reserved usufruct?

According to the BGH, the start of the ten-year period under § 529 (1) BGB is not prevented by the donor reserving a lifelong right of use (BGH, judgment of 19.07.2011, X ZR 140/10). The case decided concerned a right of residence; for an unrestricted usufruct this must be checked in the individual case. What counts is the performance; for land, the donee's own application for registration after the Auflassung is sufficient. The supplement to the compulsory share is different: with an unrestricted reserved usufruct, the period there does not begin to run at all (BGH IV ZR 474/15).

When is the clawback by the welfare office excluded?

The clawback is excluded if, at the time the need arose, ten years had passed since the performance of the gifted object, or if the donor brought about his need intentionally or through gross negligence (§ 529 (1) BGB). In addition, it does not apply to the extent that the donee cannot return the gift without endangering his maintenance appropriate to his station or his statutory maintenance obligations (§ 529 (2) BGB).

How much does the donee have to pay back to the welfare office?

The law draws several limits. The claim is directed at the return of the gift under the rules on unjust enrichment, and only to the extent that the donor is unable to pay for his appropriate maintenance and to fulfil his statutory maintenance obligations (§ 528 (1) sentence 1 BGB). The donee can avert the return by paying the amount required for maintenance (§ 528 (1) sentence 2 BGB). The welfare office can only transfer the claim up to the amount of its expenditure (§ 93 (1) SGB XII). You should have the exact scope checked in the individual case.

Is the ten-year period for the welfare office the same as for gift tax?

No. The period under § 529 (1) BGB, the tax aggregation under § 14 ErbStG and the supplement to the compulsory share under § 2325 BGB are three different ten-year rules with different points of reference. A gift can already lie outside the ten-year window for tax purposes while the welfare-office clawback is still a threat, or the other way round.

Conclusion: a period of its own, with a logic of its own

The welfare office's access to a gift does not follow tax law. What counts are §§ 528, 529 BGB and the transfer under § 93 SGB XII. The decisive factors are the gift as the object of the claim, the donor's need as the measure, and the interval of ten years between the performance and the moment the need arose. Anyone who gives away a property with an unrestricted usufruct prevents the compulsory-share period from starting and does not exclude the clawback by the welfare office.

The practical consequence is clear: a substantial gift should be planned early and with all three periods in view, not only once the first letter from the authority lands in the letterbox. For a second opinion from an experienced tax adviser before the transfer, the early appointment is worth it, and anyone looking for the right moment will find the arguments in the article Starting succession planning early.

Sources and assumptions: Statutory texts of §§ 528, 529, 2325 BGB and § 93 SGB XII according to gesetze-im-internet.de, retrieved on 16.10.2026; case law BGH X ZR 140/10 and BGH IV ZR 474/15 (linked in the text). The Berger family example is fictitious. Not covered are the calculation of the period to the exact day and the scope of the return under the rules on unjust enrichment. This article describes the general legal position under German law and does not replace individual advice.

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