Nowadays, many people assume that, as the surviving spouse in a childless marriage, they will generally become the sole heir within the framework of statutory succession, even without a will. However, this is often not the case.
Who inherits ("succession") is determined by law if there is no will or if the deceased, also known as the testator, explicitly referred to intestate succession in their will. But what exactly does intestate succession regulate? This can be better understood using an example. A married couple has no children. When the wife F dies, her surviving husband M wonders who will inherit her and how much. F 's parents have already died, but F still has two sisters.
The principle of intestate succession under German inheritance law states that the surviving spouse inherits a quarter of the estate alongside first-degree relatives and half of the estate alongside second-degree relatives or grandparents.
First-degree relatives are the deceased's descendants, i.e. in particular their children. Second-order relatives are primarily the parents of the deceased and their descendants, i.e. normally the siblings of the deceased. However, the siblings only become heirs if at least one parent has already died.
The M would therefore inherit 25% alongside children and 50% alongside the F 's parents or siblings. Since the F had no children and her parents are already deceased, according to this principle the M would inherit 50% and the F 's sisters would inherit the other 50% together, i.e. 25% each.
However, this principle varies depending on the matrimonial property regime. The term "matrimonial property regime" refers to the rules governing the management of assets during the marriage and their division after divorce or the death of a spouse.
If the spouses have not reached an agreement regarding the matrimonial property regime as part of a marriage contract, the statutory matrimonial property regime of community of accrued gains automatically applies. It should be noted here that the surviving spouse's inheritance share is increased by a flat rate of 1/4 in the case of statutory succession. As a result, in our case, M and F 's sisters no longer inherit only 50% of the estate, but 75%. F 's sisters inherit a total of 25%, i.e. 12.5% per person.
In the case of separation of property, however, the principle explained above remains the same. Under the separation of property regime, the spouses remain the sole owners of the assets acquired before and after the marriage. After divorce or the death of a spouse, there is no equalization of gains. M therefore inherits 50% and F 's sisters the other 50%.
In the last possible matrimonial property regime, the community of property regime, it must be taken into account that there are different asset classes. On the one hand, there is the joint property. The joint property is the assets that the spouses have brought into the marriage and have earned during the marriage. It is therefore the joint property of the spouses. The community property is not divided before the termination of the community of property, i.e. neither spouse can dispose of their share of the community property or individual items alone.
There is also the separate property of each spouse. This is excluded from the community property and each spouse manages their separate property independently. The separate property includes items that cannot be transferred by legal transaction, e.g. usufruct, non-seizable salary and pension entitlements, company shares. However, income from the separate property belongs to the community property.
Finally, there is the reserved property of each spouse. This is also excluded from the community property. The reserved property includes, in particular, items determined by a marriage contract which a spouse acquires by reason of death or by gratuitous gift from a third party and the spouse or the testator had determined that the acquisition of the item should become reserved property. The reserved property also includes the income from the reserved property.
The principle mentioned above also comes into play here. In our case, M therefore inherits half of the special property, half of the reserved property and, as a result, a quarter of the total property.
In summary, this means that under German inheritance law, the surviving spouse of a childless couple will never become the sole heir if the deceased has siblings and they are still alive, unless otherwise stipulated in the will or inheritance contract.
If the couple now live in Spain, it should be noted that Spanish inheritance law has been applicable since 2015 if the deceased had their last place of residence in Spain and did not make a will in which they expressed a choice of law in favor of German inheritance law.
Under Spanish inheritance law, the surviving spouse is generally only entitled to usufruct, i.e. a right to use one third of the estate. The deceased's descendants (children or grandchildren) are the primary heirs. If they are not present, then the deceased's ancestors, i.e. in particular the parents, inherit. If there are neither descendants nor the parents of the deceased, the surviving spouse becomes the sole heir. Under Spanish inheritance law, siblings belong to the collateral line and are only entitled to inherit if there is no spouse.
However, the surviving spouse may also have claims arising from the marriage, depending on the matrimonial property regime chosen. In Spanish law, the statutory matrimonial property regime is the "régimen de participación", which comes closest to the German community of property regime. In simple terms, under this matrimonial property regime (with the exception of inheritances), all income and profits become community property, are administered jointly by the spouses and the surviving spouse is entitled to half in the event of dissolution of the marriage. In the separation of property regime ("separación de bienes"), the spouse has no claims from the marriage and retains usufruct over one third of the estate. Finally, there is the "sociedad de gananciales" (so-called community of accrued gains), which is most comparable to the German community of accrued gains. Here, the respective spouses retain sole ownership of the assets acquired prior to the establishment of the marriage ("bienes privados"). The reserved property also includes assets acquired through gifts and inheritance. Assets acquired during the marriage form part of the community property ("bienes gananciales").
According to Spanish inheritance law, the M in our example therefore becomes the sole heir of the F. This happens regardless of the matrimonial property regime.
In Spanish civil law, however, it should be noted that the Spanish Civil Code (Código Civil) does not apply to all regions of Spain as a whole. Rather, there is the overriding Foral Law (Derecho Foral). This is the case, for example, in the Balearic Islands and therefore in Mallorca.
However, Mallorcan inheritance law largely applies Spanish inheritance law. However, there are special features that must be observed. For example, the surviving spouse is entitled to usufruct of 1/2 of the estate in addition to the descendants and 2/3 in addition to the parents of the deceased. If there are no descendants or parents of the deceased, the surviving spouse is entitled to usufruct of the entire estate.
For foreigners, it should be emphasized that in most cases it is not Mallorcan inheritance law that applies to them, but central Spanish inheritance law, as a civil status (so-called Vecindad Civil) must be given for the application of formal law, which is almost always lacking in the case of foreigners.
Nevertheless, separation of property is the legal matrimonial property regime in Mallorca. If there is no agreement regarding the matrimonial property regime, the surviving spouse is not entitled to any further claims arising from the marriage.
Conclusion: Even in the case of childless German couples, it cannot always be assumed that the spouse will be the sole heir. This is especially true if parents or siblings of the deceased are still alive. It is therefore highly advisable and recommendable to draw up an appropriate will.
Saskia Porta, a registered lawyer in the German and Spanish Bar Associations, is a recognized expert in inheritance, corporate and contract law with specialist knowledge of the Balearic Islands. She works alongside Dr. Dominic Porta, a recognized expert in international commercial law with specialist knowledge of Spanish real estate law, in his law firm in Mallorca. Here, the specialist lawyers advise clients of NEPTUNUS INTERNATIONAL Real Estate, among others, on all legal matters relating to real estate.
More information at https://www.anwaltmallorca.eu/
