Your heart is broken. You are getting a legal divorce. Can your spouse inherit you? What will pending divorce proceedings and their consequences under inheritance and maritial property law become under the revised inheritance law?
Married or legally divorced
In principle, spouses and registered partners inherit each other as long as the marriage or registered partnership exists.
Divorced spouses have no legal right of inheritance to each other. You are divorced if there is a final divorce decree.
Initial situation
Throughout the divorce proceedings, nowadays spouses are still entitled to mutual inheritance and compulsory portions. This can lead to tactical delays if one spouse is ill and there is speculation on his or her inheritance. After all, a marriage is dissolved by death or divorce.
What can you do at this point? Put the spouse (before (!) pendency of the divorce proceedings) on the compulsory portion by means of a testamentary disposition to unilaterally limit his or her rights.
Revised inheritance law
Loss of the right to a statutory share
The loss of the right to a compulsory portion will now be brought forward to the pendency of the divorce proceedings from January 1, 2023. However, the statutory right of inheritance remains in force. The same applies in the case of a registered partnership.
Statutory heir
What does this mean? In future, the surviving spouse or the surviving registered partner will be entitled to the inheritance portion in the event of death before the divorce decree or dissolution decree has formally taken legal effect, provided this has not been withdrawn in the will. In effect, a new “ground for disinheritance” is created. This is because you are to be able to dispose of your own assets if you are to stand before the court to end the marriage or lifetime partnership.
Take action: In future, deprive the other person of the right to a compulsory share by means of a testamentary disposition. Consequently, the compulsory shares apply as if the testator were not married. Without your action, the future ex-partner will remain the legal heir until the divorce or dissolution decree becomes final.
Loss of benefits
Pending divorce proceedings will have further consequences in the future: Inheritance law and marital property law benefits will cease to apply.
Without an appropriate restriction, claims of spouses or registered partners arising from testamentary dispositions upon death will cease to exist by operation of law. In other words, if the other spouse dies during the divorce or dissolution proceedings, the divorcee or registered partner will in principle not be able to make any claims under the inheritance contract. The binding effect of inheritance contracts will cease by operation of law.
In the case of pending divorce proceedings, as of January 1, 2023 – without an express provision in the prenuptial agreement – the agreements on participation in the surplus as well as agreements on the overall division of property in the event of death will cease to apply by operation of law.
Check-up
Are you surprised?
With regard to the revision of inheritance law, review your existing marriage or inheritance contract.
Last will and testament
Is a divorce imminent? Get timely advice on the consequences under inheritance law, among other things, and draw up a will.
One thing is certain: estate, legal transaction and divorce planning will increase.