Zugewinngemeinschaft and Inheritance: What the Spouse Inherits

What does the spouse inherit in the Zugewinngemeinschaft?

The Zugewinngemeinschaft is the statutory matrimonial property regime: spouses live in it unless they agree otherwise by marriage contract (§ 1363 BGB). The assets of each spouse do not become joint assets, including assets acquired after the marriage. The accrued gain achieved during the marriage is only equalised when the Zugewinngemeinschaft ends.

Share of the estate under statutory succession

If the property regime ends through the death of a spouse, the equalisation of accrued gains is effected under § 1371 Abs. 1 BGB by increasing the survivor's statutory share by one quarter of the estate. Whether the spouses actually achieved an accrued gain in the individual case is irrelevant for this. The starting share follows from § 1931 BGB, whose subsection 3 expressly leaves § 1371 unaffected.

If grandparents and descendants of grandparents inherit together, the spouse also receives from the other half the share that would fall to these descendants under § 1926 BGB (§ 1931 Abs. 1 sentence 2 BGB). If there are neither relatives of the first or second order nor grandparents, the surviving spouse receives the entire estate (§ 1931 Abs. 2 BGB). How the remainder of the estate is divided among several children is explained in the article on intestate succession without a will.

Example: inheritance-law solution

Fictitious case: The husband dies without a will. Estate EUR 800,000, two children, Voraus not taken into account.

Voraus and funds for education

As statutory heir alongside relatives of the first order, the spouse is additionally entitled, as Voraus (advance entitlement), to the items belonging to the marital household, unless they are accessories of a plot of land, and to the wedding gifts, but only to the extent he or she needs them to run an appropriate household (§ 1932 Abs. 1 BGB). Alongside relatives of the second order or grandparents, this restriction does not apply.

The additional quarter may be encumbered: if there are descendants of the deceased entitled to inherit who do not stem from the marriage dissolved by the death, the survivor must provide them, if and to the extent they need it, with the means for an appropriate education out of this quarter (§ 1371 Abs. 4 BGB). How far this obligation extends in the individual case remains an open question.

If there is a will

The calculation 1/4 plus 1/4 concerns the statutory share. Whether and how § 1371 Abs. 1 BGB applies where the spouse has been appointed heir by a disposition upon death (Verfügung von Todes wegen) is not expressly answered by the wording evaluated here; that remains an open question.

How do inheritances and gifts count in the accrued gain?

Accrued gain is the amount by which a spouse's final assets exceed his or her initial assets (§ 1373 BGB). Initial assets are the assets, after deduction of liabilities, at the time the property regime began (§ 1374 Abs. 1 BGB); the relevant point is therefore that time, not simply the wedding. Final assets are the assets after deduction of liabilities when the property regime ends (§ 1375 Abs. 1 BGB). Certain gratuitous dispositions, waste and acts intended to disadvantage the other spouse are added to the final assets, but not if they occurred at least ten years before the property regime ended or if the other spouse consented to the disposition or the waste (§ 1375 Abs. 2 and 3 BGB).

Two common misconceptions

• “An inheritance increases the accrued gain.” Put that broadly, it is not correct. Assets that a spouse acquires after the property regime began upon death, with regard to a future right of inheritance, by gift or as an endowment are added to the initial assets after deduction of liabilities, unless in the circumstances they are to be counted as income (§ 1374 Abs. 2 BGB). These assets are valued at their value at the time of acquisition, the final assets at their value when the property regime ends (§ 1376 Abs. 1 and 2 BGB). How later changes in value, for example of an inherited property or an inherited securities portfolio, affect the outcome in the individual case goes beyond this wording and should be examined specifically.
• “No accrued gain, no additional quarter.” For the additional quarter under § 1371 Abs. 1 BGB it is irrelevant whether an accrued gain was achieved.

Person in a dark green suit sitting at a table with a pen, another person partly cut off in the foreground, bright interior

The matrimonial-property-law solution: equalisation claim plus compulsory share

§ 1371 Abs. 2 BGB provides: if the surviving spouse does not become heir and is not entitled to a legacy either, he or she can demand equalisation of the accrued gain under §§ 1373 to 1383, 1390 BGB. The spouse's compulsory share and that of other persons entitled to a compulsory share are then determined by the non-increased statutory share of the spouse.

Three starting positions

• Neither heir nor legatee, for example because a will passes over the spouse and leaves him or her nothing: § 1371 Abs. 2 BGB applies directly; no disclaimer is required for this.
• Heir: The route leads via the disclaimer (Ausschlagung). A spouse who disclaims can, in addition to the equalisation of accrued gains, demand the compulsory share even if it would not be due under the rules of inheritance law; this does not apply if he or she has waived the statutory inheritance right or the compulsory-share right by contract with the spouse (§ 1371 Abs. 3 BGB). The disclaimer is a decision made after the death, the waiver is a contract with the spouse; the two must be kept strictly apart. General information on disclaiming an inheritance can be found in the separate article.
• Legatee: How a legacy affects the route to the matrimonial-property-law solution remains an open question here.

Amount of the equalisation claim

If the accrued gain of one spouse exceeds that of the other, half of the surplus is due to the other spouse as an equalisation claim (§ 1378 Abs. 1 BGB). It follows: If the surviving spouse's accrued gain equals or exceeds that of the deceased, the surviving spouse has no equalisation claim.

The amount is limited by the value of the assets existing after deduction of liabilities when the property regime ends; in the cases of § 1375 Abs. 2 sentence 1 BGB, this limit increases by the amount to be added (§ 1378 Abs. 2 BGB). The claim arises when the property regime ends and is inheritable and transferable from that point (§ 1378 Abs. 3 BGB). Whether, conversely, the deceased's heirs may have a claim where the survivor had the higher accrued gain remains an open question.

Compulsory share: here only as placeholder P

The compulsory share consists of half the value of the statutory share (§ 2303 Abs. 1 sentence 2 BGB). Under the matrimonial-property-law solution, the non-increased share is decisive, which alongside children means half of 1/4, i.e. 1/8. The calculation is based on the composition and value of the estate at the time of death (§ 2311 Abs. 1 BGB). Whether the equalisation claim reduces this basis is not answered by the wording. The compulsory share therefore appears in the examples only as placeholder P.

Example: matrimonial-property-law solution

Same fictitious case; the wife disclaims in time; there is no contractual waiver. Assumptions: The husband's final assets after deduction of liabilities equal the estate of EUR 800,000, there are no additions, and his initial assets when the property regime began were EUR 0. The wife had initial assets of EUR 50,000 and final assets of EUR 200,000 at his death.

Here the matrimonial-property-law solution only comes out ahead if P is greater than EUR 75,000. P amounts to at most 1/8 of EUR 800,000, i.e. EUR 100,000; whether it exceeds EUR 75,000 depends on the open compulsory-share basis. Taxes and costs are not taken into account.

Inheritance-law or matrimonial-property-law solution: which one when?

A general wealth or ratio threshold above which the matrimonial-property-law solution is more favourable cannot be derived from the statute. What must be compared in the individual case are the increased share and the sum of equalisation claim and compulsory share P, each including tax.

Your choice within the deadline

The disclaimer can only be made within six weeks (§ 1944 BGB). The period begins when the heir learns of the accrual of the inheritance and the ground on which he or she is called; if the heir is called by a disposition upon death, it does not begin before the probate court has announced that disposition. The limitation provisions of §§ 206, 210 BGB apply accordingly to the running of the period; what follows from this in the individual case is not covered here. The period is six months if the deceased's last domicile was only abroad or if the heir is abroad when the period begins. The deadline matters only insofar as the matrimonial-property-law solution requires a disclaimer, i.e. if you have become heir.

1. Clarify your position: Are you statutory heir, heir appointed by a disposition upon death, legatee or neither?
2. Determine the deadline: Record start and duration under § 1944 BGB, check the six-month period where there is a foreign connection, and have it clarified whether §§ 206, 210 BGB, which apply accordingly, affect the running of the period.
3. Record the assets: Determine both spouses' initial and final assets with reference dates, liabilities and additions under § 1374 Abs. 2 and § 1375 Abs. 2 BGB.
4. Calculate the equalisation claim: Half of the surplus, limited under § 1378 Abs. 2 BGB; no claim if your accrued gain equals or exceeds that of the deceased.
5. Classify the compulsory share: Check any contractual waiver and have the basis of assessment under § 2311 BGB clarified before putting a figure on P.
6. Include tax: Compare both routes under § 5 ErbStG and the allowances.
7. Decide in time: If you intend to disclaim, this must happen before the deadline expires; afterwards a disclaimer is no longer possible.

Common mistakes in the choice

• Miscalculating the deadline: The start depends on knowledge of the accrual and the ground of being called, not simply on the date of death. If the period expires, the route to the matrimonial-property-law solution via disclaimer is closed.
• Misallocating inheritances: Acquisitions upon death and gifts after the property regime began are added to the initial assets after deduction of liabilities, unless in the circumstances they are to be counted as income (§ 1374 Abs. 2 BGB).
• Misjudging liability: The heir is liable for the estate liabilities, which also include liabilities from compulsory-share rights and legacies (§ 1967 BGB). This liability is tied to the position as heir; options for limiting liability are not covered here.
• Deciding without figures: Only the concrete calculation of accrued gains including P and the tax consequences shows which route is economically better in the individual case.

Inheritance tax: what § 5 ErbStG actually exempts

The statement “the equalisation of accrued gains is tax-free” is too imprecise. § 5 ErbStG distinguishes two cases:

• Inheritance-law solution (§ 5 Abs. 1 ErbStG): If the Zugewinngemeinschaft ends through death and the accrued gain is not equalised under § 1371 Abs. 2 BGB, the amount the surviving spouse could claim as an equalisation claim in accordance with § 1371 Abs. 2 BGB is not treated as an acquisition within the meaning of § 3 ErbStG. What is exempt, then, is not the additional quarter as such, but the amount of a notional equalisation claim.
• Matrimonial-property-law solution (§ 5 Abs. 2 ErbStG): If the accrued gain is equalised under § 1371 Abs. 2 BGB, the equalisation claim does not form part of the acquisition within the meaning of §§ 3 and 7 ErbStG. The compulsory share is not covered by this rule.

Special rules apply to the notional equalisation claim under subsection 1: deviating matrimonial property agreements are disregarded in the calculation, the presumption of § 1377 Abs. 3 BGB does not apply, and where the Zugewinngemeinschaft was agreed by marriage contract, the date the contract was concluded counts as the start of the property regime. If the deceased's final assets were taken at a value higher than the tax value, at most the amount corresponding to the tax value remains exempt; if tax exemptions were taken into account, the exempt amount is reduced proportionately (§ 5 Abs. 1 sentences 2 to 6 ErbStG).

Tax example with disclosed assumptions

• Estate and final assets of the deceased EUR 1,200,000 after deduction of liabilities, tax value equal to market value, initial assets EUR 300,000, so accrued gain EUR 900,000.
• Accrued gain of the survivor EUR 0; equalisation claim therefore half of EUR 900,000, i.e. EUR 450,000; the limit under § 1378 Abs. 2 BGB is not reached.
• Statutory succession, one child, unlimited tax liability, no prior acquisitions, no further tax exemptions, no Voraus, no contractual waiver.
• Expressly excluded: the special pension allowance of EUR 256,000 under § 17 Abs. 1 ErbStG, which is reduced by the capitalised value of pension benefits not subject to inheritance tax, and the lump-sum deduction for costs under § 10 Abs. 5 Nr. 3 ErbStG.
• The spouse belongs to tax class I (§ 15 Abs. 1 ErbStG); the spouse's allowance is EUR 500,000 (§ 16 Abs. 1 Nr. 1 ErbStG).

Here P amounts to at most 1/8 of EUR 1,200,000, i.e. EUR 150,000. Under these assumptions, therefore, no inheritance tax arises in either variant. The tax rates under § 19 Abs. 1 ErbStG do not come into play; in tax class I they would be 7% up to EUR 75,000 and 11% up to EUR 300,000 of taxable acquisition. Economically, the matrimonial-property-law solution does not come out ahead under these assumptions: EUR 450,000 + P at most reaches the EUR 600,000 of the inheritance-law solution, and it would only draw level if the equalisation claim does not reduce the compulsory-share basis. If an assumption changes, for example through tax exemptions, different tax values or the survivor's own accrued gain, the result may change.

Gütertrennung and modified Zugewinngemeinschaft

Gütertrennung on death

Under Gütertrennung there is no increase under § 1371 Abs. 1 BGB. The statutory share under § 1931 BGB applies, with a special rule: if one or two children are called as statutory heirs alongside the spouse, the spouse and each child inherit in equal parts (§ 1931 Abs. 4 BGB).

With one child, the spouse therefore inherits half under both regimes; under Gütertrennung, the spouse receives less only from two children upwards. Pure share comparison with three children and an estate of EUR 1,000,000: EUR 250,000 under Gütertrennung, EUR 500,000 in the Zugewinngemeinschaft.

Under Gütergemeinschaft (community of property), § 1931 Abs. 1 BGB results in a share of 1/4 alongside children; § 1371 BGB governs the equalisation of accrued gains on death in the Zugewinngemeinschaft. How the joint property (Gesamtgut) of the Gütergemeinschaft is to be treated in this context remains open here.

Modified Zugewinngemeinschaft

By marriage contract, spouses can regulate their matrimonial property relations and also cancel or change the property regime after the marriage (§ 1408 Abs. 1 BGB). It is conceivable to adjust individual rules of the equalisation of accrued gains without moving entirely to Gütertrennung. Two limits must be observed:

• If spouses exclude or cancel the statutory property regime, Gütertrennung applies unless the marriage contract provides otherwise; the same applies if the equalisation of accrued gains is excluded (§ 1414 BGB). Whether a merely partial exclusion, for example only for the case of divorce, leaves the property regime and thus § 1371 Abs. 1 BGB unaffected is an open question for contract drafting.
• When calculating the notional equalisation claim exempt under § 5 Abs. 1 ErbStG, deviating matrimonial property agreements are disregarded.

A marriage contract should therefore be coordinated with the will and the rest of the succession planning.

Zugewinngemeinschaft and Berliner Testament

Spouses can appoint each other as heirs in a joint will. If they have provided that after the survivor's death the combined estate is to pass to a third party, it is to be assumed in case of doubt that the third party is appointed heir to the entire estate of the spouse who dies last (§ 2269 Abs. 1 BGB). Structure and binding effect are explained in the article on the Berliner Testament.

Children who are excluded from succession by a disposition upon death at the first death can demand the compulsory share from the heir (§ 2303 Abs. 1 BGB). Whether their statutory share, and thus their compulsory share, is to be assessed taking into account the increase under § 1371 Abs. 1 BGB where the spouse is sole heir under a will remains an open question here. Basics on the compulsory share can be found in the separate article.

Relatives and the spouse of the deceased can waive their statutory inheritance right by contract with the deceased, and the waiver can be limited to the compulsory-share right (§ 2346 BGB). Anyone who waives the statutory inheritance right is excluded from statutory succession as if he or she were no longer alive at the time of the death, and has no compulsory-share right.

Frequently asked questions

What does the spouse inherit in the Zugewinngemeinschaft alongside children?

Under statutory succession, the spouse receives 1/4 under § 1931 Abs. 1 BGB and a further quarter under § 1371 Abs. 1 BGB, together half of the estate, regardless of whether an accrued gain was achieved. If there are descendants of the deceased entitled to inherit who do not stem from this marriage, the additional quarter may be encumbered with funds for their education, if and to the extent they need them (§ 1371 Abs. 4 BGB).

Do inheritances during the marriage increase the accrued gain?

Not as such: inheritances, gifts and endowments after the property regime began are added to the initial assets after deduction of liabilities, unless in the circumstances they are to be counted as income (§ 1374 Abs. 2 BGB). These assets are valued at their value at the time of acquisition, the final assets at their value when the property regime ends (§ 1376 BGB). How later changes in value play out should be examined in the individual case.

What distinguishes the inheritance-law and the matrimonial-property-law solution?

Under the inheritance-law solution, the spouse receives as statutory heir the share increased by one quarter. Under the matrimonial-property-law solution, the spouse does not become heir and receives no legacy, for example because he or she was passed over or has disclaimed, and claims the concrete equalisation of accrued gains and, unless he or she has waived the inheritance or compulsory-share right by contract with the spouse, the compulsory share based on the non-increased share (§ 1371 Abs. 2 and 3, § 2346 BGB). An equalisation claim exists only if the deceased's accrued gain exceeds that of the survivor.

Is the equalisation of accrued gains free of inheritance tax?

Under the matrimonial-property-law solution, the equalisation claim does not form part of the acquisition (§ 5 Abs. 2 ErbStG); the compulsory share is not covered by this. Under the inheritance-law solution, it is not the additional quarter but the amount the spouse could claim as an equalisation claim under § 1371 Abs. 2 BGB that is not treated as an acquisition (§ 5 Abs. 1 ErbStG). The special rules of § 5 Abs. 1 sentences 2 to 6 ErbStG apply to this amount.

What applies on death under Gütertrennung?

There is no increase under § 1371 Abs. 1 BGB. Alongside one or two children, the spouse and each child inherit in equal parts, i.e. 1/2 or 1/3 (§ 1931 Abs. 4 BGB); alongside three or more children, the spouse receives 1/4 (§ 1931 Abs. 1 BGB). The spouse thus receives less than in the Zugewinngemeinschaft only from two children upwards.

Can I change the property regime later?

Yes, a marriage contract is also possible after the marriage (§ 1408 Abs. 1 BGB). It must be recorded by a notary with both spouses present at the same time (§ 1410 BGB). You should have the consequences of a change for the share of the estate, compulsory shares and § 5 ErbStG examined beforehand.

Conclusion and open questions

Under statutory succession, the Zugewinngemeinschaft gives the surviving spouse half of the estate alongside children. The matrimonial-property-law solution can yield more, but need not: what matters are both spouses' accrued gains, the limit of § 1378 Abs. 2 BGB, the compulsory share P and the tax treatment under § 5 ErbStG.

• Check the property regime: Without a marriage contract, the Zugewinngemeinschaft applies.
• Keep records: Evidence of initial assets and of inheritances or gifts after the property regime began makes the later calculation easier.
• Calculate both routes: With disclosed assumptions and in good time before the disclaimer period expires.
• Align will and marriage contract: Particularly with a Berliner Testament and with contractual changes to the property regime.

Open questions not answered by the wording evaluated here:

• Does the equalisation claim reduce the compulsory-share basis under § 2311 BGB?
• What rank does the equalisation claim have, and how can it be enforced against an over-indebted estate?
• Can the deceased's heirs have a claim if the survivor had the higher accrued gain?
• How does § 1371 Abs. 1 BGB operate where the spouse is appointed heir by will, including for the children's compulsory shares?
• What applies if the spouse is entitled to a legacy?
• How is the joint property (Gesamtgut) to be treated under Gütergemeinschaft?
• Does a partial exclusion of the equalisation of accrued gains have effect under § 1414 sentence 2 BGB?
• How far does the obligation under § 1371 Abs. 4 BGB extend, and how do changes in value operate beyond the wording of § 1376 BGB?
• How do §§ 206, 210 BGB, applicable accordingly under § 1944 Abs. 2 sentence 3 BGB, affect the running of the period?

Limits: This article is general information and does not replace legal or tax advice in the individual case. If you would like to have your situation assessed, you can request an initial consultation.

---

---

Do you have questions about the Zugewinngemeinschaft on death? As a Steuerberater specialising in succession of wealth, I support you in finding the optimal structure. Arrange a non-binding initial consultation.