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

What is the clawback for the donor's impoverishment?

The Rückforderung wegen Verarmung (clawback for impoverishment) is the donor's statutory right to demand the return of a gift if, after the gift, he is no longer able to cover his own adequate living costs (§ 528 (1) BGB). Long-term care needs with high nursing-home costs are the practically most important trigger. The claim is directed against the donee and is measured by the rules on the surrender of unjust enrichment.

The scope matters: what is owed is coverage of the uncovered need - the return of the entire gift is not on the table. § 528 (1) sentence 2 BGB expressly allows the donee to avert the surrender of the item by paying the amount required for maintenance. For a gifted property this regularly means: the donee keeps ownership and makes ongoing payments in the amount of the uncovered care costs until the value of the gift is mathematically exhausted.

Why the welfare office gets involved at all

The clawback is, in practice, pursued by the welfare office (Sozialhilfeträger), the care-needing donor himself almost never takes that step. As soon as the welfare office pays Hilfe zur Pflege under SGB XII because the pension and assets of the Pflegebedürftigen do not cover the nursing-home costs, the civil-law claim under § 528 BGB is transferred onto the office by way of Überleitung (transfer of claim). The legal basis for this transfer is § 93 SGB XII.

The mechanism is plain: the welfare office first provides the benefit to the Pflegebedürftigen, then transfers the donor's claim against the donee onto itself by written notice (Verwaltungsakt, i.e. administrative act) and demands the money directly from the donee. The SGB XII falls outside the citable law database used here; the mechanism, however, is settled administrative practice. For the donee this means, in concrete terms: the letter arrives from the authority, from a family member. The emotional side of the gift carries no weight with the office.

Practical tip: The most common misconception is that the welfare office can only reach the assets of the Pflegebedürftigen himself. Through the transfer under § 93 SGB XII the office's reach extends to the donee - to the child or grandchild who received the property years ago.

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

The clawback is excluded under § 529 (1) BGB if, at the time the neediness arises, ten years have passed since the performance of the gifted object. If the completion of the gift lies more than ten years back, the welfare office comes away empty-handed, even if the donor is fully impoverished and lives permanently in a nursing home.

What counts is the performance of the gifted object. For real estate that is the dinglicher Vollzug (land-register performance), i.e. the registration of the donee in the Grundbuch. From that day on, the period runs by the calendar. § 529 (1) BGB names a second ground of exclusion in needs caused intentionally or by gross negligence, which rarely applies in the Pflegefall scenario, because age-related need for care cannot be attributed to anyone as fault.

§ 529 (2) BGB contains, in addition, a separate limit in favour of the donee: surrender is excluded to the extent the donee, considering his other obligations, would be unable to surrender the gift without endangering his own adequate maintenance or his own statutory maintenance obligations. This Notbedarfsschranke (hardship limit) protects the donee from his own impoverishment, but the courts interpret it narrowly.

This period has nothing to do with the gift-tax ten-year period. Anyone who wants to know how the Freibetrag (personal tax-free allowance, e.g. EUR 400,000 per child per donor under § 16 ErbStG) becomes available again after ten years, and how the gift-tax ten-year period is delimited from the Pflichtteil (statutory minimum share for close relatives in German inheritance law, § 2303 BGB) and the welfare office, will find the answer in the guide Schenkung Ten-Year Period: Three Periods Compared. This post deliberately stays on the social-law side.

The Niessbrauch trap: why the reservation does not protect here

When gifting real estate, many donors reserve themselves a lifelong Niessbrauch, in order to keep living in the house or to keep the rental income. For the Pflichtteilsergaenzung that is effective protection, because there the economic performance is what counts: as long as the donor remains economically attached to the property through the Niessbrauch, the period under § 2325 (3) BGB does not begin to run at all under settled BGH case law (leading decision BGH IV ZR 30/76). Precisely that reflex becomes a trap in the welfare-office clawback.

For § 528 and § 529 BGB the opposite applies. What matters here is the land-register performance, i.e. the Grundbuchumschreibung (land-register transfer), the continuing economic use. The Bundesgerichtshof (Federal Court of Justice, BGH) has expressly decided that with its judgment of 19.07.2011 (X ZR 140/10): the reservation of a lifelong and comprehensive Niessbrauch is, for the start of the ten-year period of § 529 BGB, harmless. The social-law period therefore runs from the completion of the gift, regardless of whether a Niessbrauch was reserved.

From this follows the most important distinction when transferring a house: a Niessbrauchsvorbehalt pushes the Pflichtteil clock back, but lets the welfare-office clock start running immediately. Anyone who only thinks about the Pflichtteil and therefore treats the Niessbrauch as the all-decisive lever has missed the welfare-office lever. For the question of how a Niessbrauch affects the tax side, the Niessbrauch guide for gifts is worth a closer look.

Calculation example: Pflegefall eight years after the gift

The Berger family. In 2018, father Berger transfers his house (market value EUR 400,000) to his daughter, with a reserved Niessbrauch. The land-register transfer takes place in November 2018. In 2026, father Berger becomes a Pflegefall (Pflegegrad 4, the German care-grade classification for severe care needs), moves into a nursing home and has an uncovered personal share of around EUR 2,700 per month, which the welfare office initially covers.

Because the gift lies only around eight years back, the ten-year period of § 529 (1) BGB has not yet expired. The reserved Niessbrauch changes nothing (BGH X ZR 140/10). The welfare office transfers the claim under § 528 BGB onto itself under § 93 SGB XII and goes after the daughter. She keeps the house and is called upon for ongoing payment of the uncovered need, capped at the value of the gift.

Had father Berger transferred the property two years earlier, or had the neediness arisen two years later, the period would have expired and no clawback would have been possible. This day-precise view shows why, for property gifts with foreseeable care risk, the timing of completion needs careful planning. What Schenkungsteuer (German gift tax, governed by ErbStG) falls due on a transfer of this size can be checked in advance with the Schenkungsteuer calculator.

What actually relieves the donee

Against the welfare-office clawback, no sham constructions help, only the statutory limits and clean timing. The following points are the real levers.

First, the lapse of time under § 529 (1) BGB. If completion lies ten years or more in the past, the claim is finally excluded. That is the only way to eliminate the risk completely, and it requires that the gift was executed early enough and without period-suspending assumptions.

Second, the hardship limit under § 529 (2) BGB. If surrender would push the donee himself into neediness or endanger his own statutory maintenance obligations, the clawback is excluded to that extent. Anyone who has already invested the gifted money in his own self-occupied property should have this objection reviewed.

Third, the cap on the amount. The claim is capped at the value of the gift, and the donee can satisfy it by ongoing payment of the uncovered need rather than by surrendering the item (§ 528 (1) sentence 2 BGB). A full unwinding of the property can therefore almost always be avoided.

Fourth, the donor's own provision. If the Pflegebedürftige can cover his nursing-home costs himself from pension, savings and a private Pflegezusatzversicherung (supplementary long-term-care insurance), no social-assistance claim arises and, with it, no transferred clawback claim.

What you should specifically do in 2026

Anyone transferring real estate or a larger fortune during his lifetime while keeping care risk in view should observe the following steps:

1. Date the completion of the gift in a way that can be proven. What counts for the ten-year period of § 529 (1) BGB is the land-register transfer. The date must be documented.
2. Use the Niessbrauch for what it does: it protects against the Pflichtteil, while the welfare-office clock runs on (BGH X ZR 140/10). Anyone who wants to exclude the welfare-office risk completely needs the lapse of the period, the reservation.
3. Build long-term-care provision early. A private Pflegezusatzversicherung, taken out early, can close the funding gap and prevent the social-assistance claim from the start.
4. Do not pay too quickly when a letter from the welfare office arrives. Have it reviewed whether the ten-year period has already expired and whether the hardship limit of § 529 (2) BGB applies.
5. Involve a tax adviser and advice specialised in inheritance law. Social-law, Pflichtteil-law and tax-law periods run independently of each other and must be planned together.

Frequently asked questions

Can the welfare office claw back a gift in a Pflegefall?

Yes. The welfare office transfers the clawback claim under § 528 BGB onto itself under § 93 SGB XII and demands from the donee, capped at the value of the gift and the uncovered need.

What happens to the gift when the donor becomes a Pflegefall?

The donor reclaims the gift on grounds of impoverishment (§ 528 BGB); in practice the welfare office pursues the claim. The donee does not have to surrender the item, he can cover the uncovered need by ongoing payment.

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

Yes. For § 529 (1) BGB the period begins with the land-register transfer, regardless of any reserved Niessbrauch (BGH, judgment of 19.07.2011, X ZR 140/10). The Pflichtteilsergaenzung is different: there the Niessbrauch suspends the period.

When is the clawback by the welfare office excluded?

The clawback is excluded if ten years have passed since the performance of the gifted object (§ 529 (1) BGB), or to the extent the donee cannot surrender the gift without endangering his own adequate maintenance (§ 529 (2) BGB).

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

At most the value of the gift, and only to the extent that the Pflegebedürftige's need is uncovered (§ 528 (1) sentence 2 BGB). The usual approach is an ongoing monthly payment of the uncovered care costs.

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

No. The social-law period of § 529 (1) BGB, the tax aggregation under § 14 ErbStG and the Pflichtteilsergaenzung under § 2325 BGB are three different ten-year periods with different starting points.

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

The welfare office's reach for 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 value of the gift as a cap, the uncovered need as the measure, and above all the ten-year window from completion. Anyone who gifts real estate with a Niessbrauch has the Pflichtteil under control. The welfare-office risk runs from day one.

The practical consequence is clear: a substantial gift should be planned early, with all three periods in view. Waiting until the first letter from the authority lands in the letterbox is too late. 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 post Starting succession planning early.

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