Schenkung in a Care Case: Sozialamt Clawback 2026 (§ 528 BGB)

What is the clawback on grounds of the donor's impoverishment?

The clawback on grounds of impoverishment is the donor's statutory claim to demand a gift back when, after the Schenkung, they are unable to meet their reasonable maintenance (§ 528 Abs. 1 BGB). Need of care with high nursing-home costs is the most important trigger in practice. The claim is directed against the recipient and is measured by the rules on the surrender of an unjust enrichment.

The scope matters: what is owed is coverage of the uncovered need, not the return of the entire gift. § 528 Abs. 1 Satz 2 BGB expressly allows the recipient to avert surrender of the item by paying the amount required for maintenance. With a gifted property this generally means: the recipient keeps ownership and instead makes ongoing payments equal to the uncovered care costs until the value of the Schenkung is used up on paper.

Why the Sozialamt comes into play at all

In practice the clawback claim is almost never asserted by the donor in need of care themselves, but by the social welfare provider. As soon as the Sozialamt pays Hilfe zur Pflege under the SGB XII because the pension and assets of the person in need of care do not cover the nursing-home costs, the civil-law claim under § 528 BGB transfers to the office by way of statutory transfer. The legal basis for this transfer is § 93 SGB XII.

The mechanism is sober: the social welfare provider first renders the benefit to the person in need of care. It then transfers the donor's claim against the recipient onto itself by written notice (an administrative act) and collects the money directly from the recipient. The SGB XII falls outside the legal database cited here, yet the transfer mechanism is settled administrative practice. For the recipient this means in concrete terms: they receive mail from the authority, not from a family member. The emotional dimension of the gift plays no role for the office.

Practical note: the most common misconception is that the Sozialamt can only reach the assets of the person in need of care themselves. Through the transfer under § 93 SGB XII the arm of the office reaches as far as the recipient - that is, the child or grandchild who received the property years ago.

The ten-year period under § 529 Abs. 1 BGB

The clawback claim is excluded under § 529 Abs. 1 BGB if, at the time the need arises, ten years have passed since the gifted item was handed over. So if completion of the Schenkung lies more than ten years in the past, the Sozialamt comes away empty-handed, even if the donor is fully impoverished and lives permanently in a nursing home.

What counts is the handing over of the gifted item. With a property this is the proprietary completion, that is, the entry of the recipient in the land register. From that day the period runs by the calendar. § 529 Abs. 1 BGB names a second ground of exclusion in the form of need brought about intentionally or by gross negligence, but this rarely applies in the care-case constellation, because age-related need of care cannot be attributed to anyone as fault.

Alongside this, § 529 Abs. 2 BGB knows its own bar in favour of the recipient: surrender is excluded insofar as the recipient, taking account of their other obligations, would be unable to surrender the gift without endangering their own reasonable maintenance or their own statutory maintenance duties. This emergency-need bar protects the recipient from impoverishment of their own, but is read narrowly by the courts.

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. 400.000 EUR per child per donor under § 16 ErbStG) becomes usable again after ten years, and how the tax ten-year period is delimited in detail against the Pflichtteil (statutory minimum share for close relatives in German inheritance law, § 2303 BGB) and the Sozialamt, will find this in the guide Schenkung ten-year period: three periods compared. This article stays deliberately on the social-law side.

The Niessbrauch trap: why the reservation does not protect here

When gifting a property many donors reserve a lifelong Niessbrauch in order to keep living in the house or to draw the rental income. For the Pflichtteilsergaenzung claim this is effective protection, because there it is the economic position that counts: as long as the donor remains economically tied to the object through the Niessbrauch, the period of § 2325 Abs. 3 BGB does not even begin to run according to settled BGH case law (leading decision BGH IV ZR 30/76). It is exactly this reflex that becomes a trap with Sozialamt recourse.

For § 528 and § 529 BGB the opposite applies. Here it is the proprietary handing over that matters, that is, the land-register transfer, not the continuing economic use. The Federal Court of Justice (Bundesgerichtshof, BGH) decided this expressly in its judgment of 19.07.2011 (X ZR 140/10): reserving a lifelong and comprehensive Niessbrauch is not harmful to the commencement of the ten-year period of § 529 BGB. The social-law period therefore runs from completion of the Schenkung, regardless of whether a Niessbrauch was reserved or not.

From this follows the most important distinction when signing over a house: a reserved Niessbrauch pushes the Pflichtteil period back, but lets the Sozialamt period start at once. Anyone who thinks only of the Pflichtteil and therefore treats the Niessbrauch as the one decisive lever has overlooked the Sozialamt lever. For the question of how a Niessbrauch works out for tax and which structuring variants exist, a deeper look into the Niessbrauch guide for Schenkungen is worthwhile.

Worked example: care case eight years after the Schenkung

The Berger family. Father Berger transfers his house (market value 400.000 EUR) to his daughter in 2018 with a reserved Niessbrauch. The land-register transfer takes place in November 2018. In 2026 Father Berger becomes in need of care (care level 4), moves into a nursing home and has an uncovered personal contribution of around 2.700 EUR per month, which the Sozialamt initially takes over.

Because the Schenkung lies only about eight years in the past, the ten-year period of § 529 Abs. 1 BGB has not yet expired. The reserved Niessbrauch changes nothing about this (BGH X ZR 140/10). The Sozialamt transfers the claim under § 528 BGB onto itself under § 93 SGB XII and pursues the daughter. She is not obliged to surrender the house, yet is called on to make ongoing payment of the uncovered need, limited to the value of the Schenkung.

Had Father Berger transferred the property two years earlier, or had the need arisen two years later, the period would have expired and no clawback would have been possible any longer. This to-the-day view shows why, with property gifts where a care risk is foreseeable, the timing of completion deserves careful planning.

What actually relieves the recipient

Against Sozialamt recourse, no sham constructions help, only the bars provided by law and clean timing. The following points are the real levers.

First, the passage of time under § 529 Abs. 1 BGB. If completion lies ten years or more in the past, the claim is finally excluded. This is the only way to remove the risk entirely, and it requires that the Schenkung was completed early enough and without period-suspending assumptions.

Second, the emergency-need bar under § 529 Abs. 2 BGB. If surrender would drive the recipient themselves into need or endanger their own statutory maintenance duties, the clawback is excluded to that extent. Anyone who has already invested the gifted money in their own occupied home should have this objection examined.

Third, the cap on the amount. The claim is capped at the value of the Schenkung, and the recipient can satisfy it by ongoing payment of the uncovered need instead of surrendering the item (§ 528 Abs. 1 Satz 2 BGB). A full unwinding of the property can almost always be avoided in this way.

Fourth, the donor's own provision. If the person in need of care can cover their nursing-home costs themselves out of pension, savings and a private supplementary care insurance, no social welfare claim arises at all, and thus no transferred clawback claim. Anyone who combines the Schenkung with sufficient care cover takes the ground out from under the recourse.

What you should specifically do in 2026

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

1. Date the completion of the Schenkung in a way that can be proven. What counts for the ten-year period of § 529 Abs. 1 BGB is the land-register transfer. The date belongs on record.
2. Deploy the Niessbrauch deliberately. It protects against the Pflichtteil, not against the Sozialamt (BGH X ZR 140/10). Anyone who wants to exclude the Sozialamt risk entirely needs the lapse of the period, not the reservation.
3. Build care provision early. A private supplementary care insurance, taken out early, can close the funding gap and prevent the social welfare claim from the outset.
4. Do not pay too hastily on a letter from the Sozialamt. Have it checked whether the ten-year period has already expired and whether the emergency-need bar of § 529 Abs. 2 BGB applies.
5. Bring in a tax adviser and advice specialising in inheritance law. Social-law, statutory-share and tax periods run independently of one another and must be planned together.

Frequently asked questions

Can the Sozialamt reclaim a Schenkung in a care case?

Yes. If the donor becomes in need of care and cannot cover their care costs themselves, the Sozialamt steps in and transfers the clawback claim under § 528 BGB onto itself under § 93 SGB XII. It then demands payment from the recipient, limited to the value of the Schenkung and the uncovered need.

What happens to the Schenkung if the donor becomes a care case?

The donor can reclaim the gift on grounds of impoverishment, insofar as they can no longer meet their maintenance together with care costs (§ 528 BGB). In practice the Sozialamt asserts this claim. But the recipient does not have to surrender the item. They can instead cover the uncovered need by ongoing payment.

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

Yes, here the period runs despite the Niessbrauch. For Sozialamt recourse under § 529 Abs. 1 BGB the ten-year exclusion period begins with the land-register transfer, regardless of a reserved Niessbrauch (BGH, judgment of 19.07.2011, X ZR 140/10). With the Pflichtteilsergaenzung claim it would be different, there the Niessbrauch suspends the period.

When is the clawback by the Sozialamt excluded?

The clawback is excluded once ten years have passed since the gifted item was handed over (§ 529 Abs. 1 BGB). In addition, it falls away insofar as the recipient cannot surrender the gift without endangering their own reasonable maintenance (§ 529 Abs. 2 BGB).

How much does the recipient have to repay to the Sozialamt?

At most the value of the Schenkung, and only insofar as the need of the person requiring care is uncovered. The recipient can avert surrender of the item by paying the required amount (§ 528 Abs. 1 Satz 2 BGB). The usual outcome is an ongoing monthly payment of the uncovered care costs until the value of the gift is reached on paper.

Is the ten-year period at the Sozialamt the same as for Schenkungsteuer?

No. The social-law period of § 529 Abs. 1 BGB, the tax aggregation under § 14 ErbStG and the Pflichtteilsergaenzung under § 2325 BGB are three different ten-year periods with different starting points. A Schenkung can be long settled for tax while Sozialamt recourse still looms, or the other way round.

Conclusion: a period of its own with its own logic

The Sozialamt's access to a Schenkung 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 Schenkung as the upper limit, the uncovered need as the measure and, above all, the ten-year span from completion. Anyone who gifts a property with a Niessbrauch has the Pflichtteil under control, but the Sozialamt risk runs from the very first day.

The practical consequence is clear: a substantial Schenkung belongs planned early and with a view to all three periods, not only once the first letter from the authority is in the mailbox. For a second opinion from an experienced tax adviser before the transfer, the early appointment is worthwhile, and anyone looking for the right moment will find the arguments in the article Start succession planning early.

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