- In the Zugewinngemeinschaft (German default matrimonial property regime), the surviving spouse inherits a flat half of the estate alongside children (§ 1931 Abs. 1 + § 1371 Abs. 1 BGB)
What is the Zugewinngemeinschaft?
The Zugewinngemeinschaft is the statutory matrimonial property regime in Germany. Anyone who marries and does not enter into a marriage contract lives automatically in the Zugewinngemeinschaft (§ 1363 BGB). That covers the overwhelming majority of all married couples.
In the Zugewinngemeinschaft, both spouses keep their own assets. No common pool of assets arises. Only when the marriage ends — through divorce or death — is the Zugewinn (accrued gain) equalised. The Zugewinn is the difference between the assets at the start of the marriage and the assets at the end of the marriage.
Why the matrimonial property regime is decisive on death
The matrimonial property regime largely determines how much the surviving spouse inherits. The differences are considerable:
- Zugewinngemeinschaft: 1/2 alongside children (1/4 statutory share + 1/4 Zugewinn uplift)
- Guetertrennung: 1/2 alongside one child, 1/3 alongside two children, 1/4 alongside three or more children (§ 1931 Abs. 4 BGB)
- Guetergemeinschaft (community of property): 1/4 alongside children (without the Zugewinn uplift)
On an estate of EUR 1,000,000, the matrimonial property regime alone decides whether the spouse receives EUR 250,000 or EUR 500,000. Those are sums that shape families across generations.
The inheritance-law solution: 1/4 plus 1/4
The inheritance-law solution is the standard case. The surviving spouse accepts the Erbe and receives the enhanced statutory share under § 1371 Abs. 1 BGB.
Calculating the share
The share of the estate is made up of two components:
- Statutory share (§ 1931 BGB): Alongside children, it amounts to 1/4 of the estate. Alongside second-order heirs (parents, siblings of the deceased) it is 1/2.
- Zugewinn lump sum (§ 1371 Abs. 1 BGB): A flat additional 1/4 of the estate. This uplift applies regardless of whether a Zugewinn has actually arisen.
Result alongside children: 1/4 + 1/4 = 1/2 of the estate.
In addition there is the Voraus (advance entitlement) under § 1932 BGB: alongside children, the surviving spouse receives the household items and wedding gifts in advance, to the extent that they are needed to run an appropriate household.
Worked example: inheritance-law solution
The Mueller couple. Herr Mueller dies. Estate: EUR 800,000. Two joint children.
| Item | Calculation | Amount |
|---|---|---|
| Statutory share of the wife | 1/4 of EUR 800,000 | EUR 200,000 |
| Zugewinn lump sum | 1/4 of EUR 800,000 | EUR 200,000 |
| Total share of the wife | 1/2 of EUR 800,000 | EUR 400,000 |
| Share per child | 1/4 of EUR 800,000 | EUR 200,000 |
The matrimonial-property-law solution: disclaim and assert Zugewinnausgleich
The matrimonial-property-law solution is the alternative. The spouse disclaims the Erbe and asks instead for the concrete Zugewinnausgleich plus the smaller Pflichtteil (§ 1371 Abs. 2 and 3 BGB).
How does it work?
- Disclaim the inheritance within the six-week period (§ 1944 BGB). Details on disclaiming the Erbe and its consequences are set out in the separate guide.
- Calculate the Zugewinnausgleich: the concrete Zugewinn is determined. Initial assets at marriage minus final assets at death. Half of the difference is owed to the surviving spouse.
- Smaller Pflichtteil: in addition to the Zugewinnausgleich, the spouse receives the Pflichtteil, calculated without the Zugewinn uplift. The Pflichtteil is half the statutory share of 1/4, that is 1/8 of the estate. More on the topic of Pflichtteil and disinheritance.
Worked example: matrimonial-property-law solution
Same case. Estate: EUR 800,000. Herr Mueller had EUR 100,000 in assets at marriage and EUR 900,000 at death (debts included). Frau Mueller had EUR 50,000 at marriage and EUR 200,000 at his death.
| Item | Calculation | Amount |
|---|---|---|
| Zugewinn of Herr Mueller | 900,000 − 100,000 EUR | EUR 800,000 |
| Zugewinn of Frau Mueller | 200,000 − 50,000 EUR | EUR 150,000 |
| Difference between the two Zugewinne | 800,000 − 150,000 EUR | EUR 650,000 |
| Zugewinnausgleich (1/2 of the difference) | 650,000 / 2 | EUR 325,000 |
| Smaller Pflichtteil (1/8 of the estate) | 800,000 / 8 | EUR 100,000 |
| Total claim of the wife | EUR 425,000 |
In this example Frau Mueller receives EUR 425,000 under the matrimonial-property-law solution, against EUR 400,000 under the inheritance-law solution. The matrimonial-property-law solution would have been EUR 25,000 better here.
Comparison table: which solution when
| Criterion | Inheritance-law solution | Matrimonial-property-law solution |
|---|---|---|
| Calculation | Flat 1/2 alongside children | Concrete Zugewinn + 1/8 Pflichtteil |
| Better when | Zugewinn of the deceased is small | Zugewinn of the deceased is large |
| Is the Zugewinn relevant? | No, flat 1/4 | Yes, concretely calculated |
| Voraus (household items) | Yes | No |
| Liability for estate debts | Liable as heir | No liability (no heir position) |
| Real estate in the estate | Co-ownership in the community of heirs | No ownership, only payment claim |
| Tax-free allowance | EUR 500,000 (§ 16 ErbStG) | Zugewinnausgleich tax-free + Pflichtteil within the Freibetrag |
| Complexity | Low | High (valuation needed) |
When is the matrimonial-property-law solution worthwhile?
The matrimonial-property-law solution pays off when the deceased achieved significantly more Zugewinn than the surviving partner. Typical constellations:
- Entrepreneurial marriages: The deceased built up a business, the partner was not in paid employment or worked to a lesser extent.
- One-sided wealth increase: Inheritances, value increases of real estate or financial assets on the side of the deceased.
- Over-indebted estate with high Zugewinn: Where the estate contains debts but the Zugewinn is high, the matrimonial-property-law solution can be considerably better, because the Zugewinnausgleich is not reduced by estate debts.
Decisive point: the Zugewinnausgleich claim is not an estate claim. It is directed against the estate, but is not itself part of it. That means: the Zugewinnausgleich ranks ahead of the heirs' claims.
Tax aspects: the Zugewinn is tax-free
A frequently overlooked advantage: the Zugewinnausgleich is exempt from Erbschaftsteuer (German inheritance tax) (§ 5 ErbStG). This applies both to the flat Zugewinn uplift in the inheritance-law solution and to the concrete Zugewinnausgleich in the matrimonial-property-law solution.
Tax advantage of the matrimonial-property-law solution
In the matrimonial-property-law solution the tax-free Zugewinnausgleich can be substantially higher than the flat 1/4. The remaining Pflichtteil (1/8) falls within the Erbschaftsteuer Freibetrag of EUR 500,000 for spouses. In the best case, the surviving spouse pays no Erbschaftsteuer at all, even though they receive a higher total amount.
Use the Erbschaftsteuer calculator to model the tax burden in both variants.
Guetertrennung on death
Under Guetertrennung there is no Zugewinn uplift. The surviving spouse inherits only the statutory share under § 1931 BGB, without the surcharge under § 1371 BGB.
Share under Guetertrennung
| Number of children | Spouse's share | Share per child |
|---|---|---|
| 1 child | 1/2 | 1/2 |
| 2 children | 1/3 | 1/3 |
| 3 or more children | 1/4 | Remainder split equally |
With one child, the spouse inherits the same share as the child under Guetertrennung (§ 1931 Abs. 4 BGB). With two children, all three inherit in equal parts. From three children onwards, the spouse's share is 1/4.
Comparison: With three children and an estate of EUR 1,000,000, the spouse receives EUR 250,000 under Guetertrennung, against EUR 500,000 under Zugewinngemeinschaft. That is a difference of EUR 250,000.
Modified Zugewinngemeinschaft as a structuring tool
Between the statutory Zugewinngemeinschaft and Guetertrennung there is a middle path: the modified Zugewinngemeinschaft. Through a marriage contract, couples can adjust the rules of the Zugewinnausgleich without switching entirely to Guetertrennung.
Typical modifications
- Exclusion of the Zugewinnausgleich on divorce, not on death: The surviving spouse continues to benefit from the Zugewinn uplift. On divorce, no Zugewinn is equalised. This protects entrepreneurs in particular.
- Carve-out of specific assets: A business is excluded from the Zugewinn, while private assets remain inside the regime.
- Cap on the Zugewinnausgleich: The equalisation is limited to a defined amount.
When does it make sense?
The modified Zugewinngemeinschaft is particularly suitable for:
- Entrepreneurs who want to protect the business in the event of divorce
- Couples with very different asset positions
- Families who want to optimise the inheritance tax position while limiting divorce risks at the same time
Structuring such a marriage contract should be part of any comprehensive succession planning. Anyone who plans in good time has more leeway. Further background on the statutory intestate succession without a will can be found in the linked guide.
Zugewinngemeinschaft and Berliner Testament
Many couples in the Zugewinngemeinschaft set up a Berliner Testament. The spouses appoint each other as sole heirs. The children only inherit after the death of the second parent.
Interplay with the Zugewinnausgleich
Under the Berliner Testament, the surviving spouse receives the entire estate, not just 1/2. The Zugewinn uplift then becomes irrelevant, because the spouse inherits everything anyway. The children can, however, claim their Pflichtteil. The Pflichtteil is calculated from the statutory share including the Zugewinn uplift.
Tax trap of the Berliner Testament
Erbschaftsteuer can come out higher under the Berliner Testament than under intestate succession. The reason: the entire estate is concentrated on one person at the first death, instead of being spread among several heirs. The children's Freibetraege remain unused at the first death. Details of the Erbschaftsteuer calculation can be found in the Erbschaftsteuer calculator.
Frequently asked questions
What does the spouse inherit in the Zugewinngemeinschaft alongside children?
The surviving spouse inherits, alongside children, half of the estate. That share is made up of the statutory share of 1/4 (§ 1931 Abs. 1 BGB) and the flat Zugewinn uplift of 1/4 (§ 1371 Abs. 1 BGB). The other half is divided equally among the children.
What is the difference between the inheritance-law and the matrimonial-property-law solution?
In the inheritance-law solution, the spouse accepts the Erbe and receives the flat half. In the matrimonial-property-law solution, the spouse disclaims the Erbe and asserts the concrete Zugewinnausgleich plus the smaller Pflichtteil. The matrimonial-property-law solution is advantageous where the deceased achieved a markedly higher Zugewinn than the surviving partner.
Is the Zugewinnausgleich free of Erbschaftsteuer?
Yes. The Zugewinnausgleich is exempt from Erbschaftsteuer under § 5 ErbStG. This applies both to the flat Zugewinn uplift and to the concretely calculated Zugewinnausgleich. With larger estates this tax advantage can make a substantial difference.
What happens on death under Guetertrennung?
Under Guetertrennung the Zugewinn uplift falls away. Alongside one child the spouse inherits half, alongside two children one third, alongside three or more children one quarter. Compared with the Zugewinngemeinschaft, the spouse receives considerably less where there are several children.
Can I change the matrimonial property regime later?
Yes. A marriage contract can be entered into at any time, not only before the wedding. Changing the regime must be notarised. A later change can make sense, for example where the asset position has changed or when a succession plan is being set up.
What is a modified Zugewinngemeinschaft?
A modified Zugewinngemeinschaft is a marriage contract that adjusts the statutory rules of the Zugewinngemeinschaft. The exclusion of the Zugewinnausgleich on divorce while keeping it on death is the typical move. The surviving spouse then continues to benefit from the Zugewinn uplift, while no Zugewinn is equalised on divorce.
Conclusion: the matrimonial property regime decides over hundreds of thousands
The Zugewinngemeinschaft protects the surviving spouse better than Guetertrennung. Anyone who lives in the Zugewinngemeinschaft inherits half of the estate alongside children. Anyone who lives under Guetertrennung receives, from two children onwards, significantly less.
Three recommendations for action:
- Check your regime: Do you know which matrimonial property regime applies to you? Without a marriage contract, it is the Zugewinngemeinschaft.
- Run both solutions through: For larger estates the comparison between the inheritance-law and the matrimonial-property-law solution pays off. The Erbschaftsteuer calculator gives a first orientation.
- Align the will: Especially with the Berliner Testament, you should understand the tax consequences before you commit.
The choice of matrimonial property regime and the decision between the solutions in the inheritance scenario are not purely legal questions. They are financial settings that affect families across generations.
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Do you have questions on the Zugewinngemeinschaft in the inheritance scenario? As a Steuerberater specialising in succession of wealth, I support you in finding the optimal structure. Book a free first meeting.
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