General
The "Berlin will" is a form of will that is reserved for spouses. Here, the spouses appoint each other as heirs and select one or more third parties as heirs of the surviving spouse. This is regulated in §§ 2265 ff. German Civil Code (BGB). This is particularly popular among spouses with children: after the death of the other spouse, the children inherit the assets that the spouses have built up over time.
The special feature of the Berlin will is that the will cannot be changed after the death of the first spouse to die, since the right to change or revoke the will (which existed during the lifetime of both spouses) expires when one of them dies. This means that the Berlin will has a binding effect that extends beyond death.
There are two different design options here: The separation solution and the unit solution.
The standard case is the unitary solution: The law regulates the case where the spouses appoint themselves as full heirs and the children are then appointed as final heirs. This has the following effects:
The surviving spouse inherits the entire assets of the deceased spouse (= full heir). As soon as the second spouse also dies, the third party selected by the spouses inherits all the assets of the last deceased (= final heirs).
Example: The spouses F and M appoint each other as sole heirs. Only after the death of the last deceased are the children A and B to become the heirs of the last deceased in equal shares.
The case that is not regulated by law is the separation solution: here, the spouses appoint each other as preheirs, and the third party becomes a subsequent heir and "substitute heir". The consequence of this is that the spouses' assets are to be regarded as separate. The surviving spouse, as the previous heir, can therefore only dispose of the inherited assets to a limited extent, see Sections 2113, 2115 of the Civil Code. As soon as the disposition would be to the disadvantage of the subsequent heirs, the disposition is initially fully effective. However, it becomes ineffective upon the occurrence of the event of subsequent inheritance if it impairs or frustrates the right of the subsequent heir.
Example: If the wife, as the previous heir, wishes to sell the house inherited from her husband, she could effectively do so at the time as the previous heir. However, as soon as the woman dies, this would be to the disadvantage of her children A and B as subsequent heirs, since the house has ceased to be an "asset" and the right of the subsequent heir has been completely excluded by the conveyance in the land register.
In principle, the law assumes the unitary solution, Section 2269 (1) of the German Civil Code. Since there are a number of things to consider when formulating a Berlin will and each option has different (and above all far-reaching) consequences, it is advisable to obtain legal advice in this regard.
Since the Berlin will is declared by both parties, this special form of will has binding effect. It can be revoked at any time. However, this requires that both spouses are still alive and agree to the revocation.
If one spouse is no longer alive and the Berlin will has not been revoked, unilateral revocation will not be possible in principle, cf. sections 2270, 2271 of the Civil Code.
However, the surviving spouse could make a waiver of inheritance. In this way, the surviving spouse disclaims the inheritance and at the same time regains his or her own power of disposal. In this way, he or she can again make a will regarding his or her own assets without the binding effect of the Berlin will recorded at the time standing in the way.
In addition, the intended final heir can be excluded from inheritance in the event of serious misconduct. However, the conditions for this are very narrow.
Berlin will with foreign reference
A special feature of the Berlin will is that it is generally only applicable to German married couples living in Germany, as the EU Inheritance Regulation (EU-ErbVO) does not recognize the Berlin will under §§ 2265 et seq. BGB does not recognize. Since 17.08.2015, the legal system of the EU country in which the deceased had his habitual residence at the time of death applies in cross-border inheritance cases. Therefore, it should already be determined during one's lifetime, when drawing up the will, which legal system is to be applied in the event of death.
In principle, the EU Inheritance Regulation applies in all EU member states except Ireland and Denmark (protocol states). These states are treated as third countries. Thus, only the citizens of the participating EU states are affected by the Regulation, for which the EU Inheritance Regulation constitutes directly applicable law. Nevertheless, the EU Inheritance Regulation also covers inheritance cases that establish a link to a third state. The third country continues to apply its national autonomous private international law (IPR) in relation to the member states, whereas the common IPR of the EU Inheritance Regulation applies in the member states in relation to the protocol states. According to Article 20 of the EU Inheritance Regulation, the law of the Regulation is applicable even if it is not the law of the member state.
Example: If two Swiss nationals have their last habitual residence in Switzerland, the Swiss legal system applies. However, if they have transferred their domicile to Spain and thus the last habitual residence is Spain, Spanish law applies.
The last habitual residence depends on the individual case and is determined on the one hand by the "center of life" and on the other hand by the "social and family environment" of the decedent.
According to Article 22 (1) sentence 1 of the EU Inheritance Regulation, a free choice of law is also possible.
Taking the example of the Swiss, they can therefore have their last habitual residence in Spain. At the same time, however, they can also choose Swiss law.
The same applies to German residents in Spain. Although they may have their habitual residence in Spain, they may nevertheless choose German law as the applicable law. In this way, a Berlin will could also be concluded.
However, this should be recorded in a will due to legal certainty.
The Berlin will - only for spouses?
Drafting in the form of a Berlin will is reserved for married couples.
For couples who are not married, there are nevertheless ways of providing for the death of their partner. This can take the form of a will pursuant to Section 1937 of the German Civil Code or a mutual disposition in the form of an inheritance contract pursuant to Section 1941 of the German Civil Code.
In an individual will in accordance with Section 1937 of the German Civil Code (BGB), the partner can be appointed as sole heir or it can be specified individually what the remaining partner is to inherit. This can also be changed without the other partner being aware of it, i.e. there is no binding effect.
The contract of inheritance pursuant to Section 1941 of the German Civil Code is similar to a will. However, this cannot be revoked without further ado when the couple separates, unless a rescission clause is attached when the contract is concluded.
In addition, the partner can be granted a legacy, § 1939 BGB. In this case, the survivor is awarded a specific item of the estate. This can be done with several items, but the partner is not treated as an heir. Although the accruing inheritance tax must still be paid, he is also not liable for any debts or liabilities of the deceased.
Term life insurance, on the other hand, saves couples the inheritance tax that is generally due. In this case, the partners name each other when they take out the insurance. In the event of death, the other partner receives the outstanding sum insured.
Conclusion
As you can see from the article, everything can be agreed individually. There is no such thing as a "right or wrong will", as each option has different effects and, depending on the assets, a different arrangement option may be more appropriate.
In order to avoid disputes within the family, it is advisable to settle the inheritance during one's lifetime.
We will be happy to help you find an arrangement that is right for you.
Author:
Dr. Dominic John Patrick Porta, LL.M.
Attorney at Law (Düsseldorf Bar Association n° 52954)
Abogado (ICAIB n° 6645)
dominic.porta@anwaltmallorca.eu
www.anwaltmallorca.eu
