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Wills in the case of unmarried couples

August 2017

The Bundestag, Germany’s lower house of parliament, has voted in favour of what it is referred to in Germany as “Ehe für alle” (marriage for all), i.e. marriage equality. Spouses are automatically accounted for under the rules of intestate succession. However, this is not the case for unmarried couples. For these couples, the rules of intestate succession do not apply.

According to German succession law, should a spouse pass away then his or her partner will not come away empty-handed, even in the absence of a will or contract of inheritance. In these instances, the rules of intestate succession apply. Although the Bundestag has now voted in favour of marriage equality, this does not mean that every couple will actually want to marry. Many couples, whether they be heterosexual or homosexual, consciously opt not to get married and cohabit without a marriage certificate. Despite having since been largely accepted and recognized by society, this way of life has yet to make inroads in succession law. We at the law firm GRP Rainer Rechtsanwälte note that in the event of one partner dying, the surviving partner will be left with nothing if neither a will nor a contract of inheritance exists. The surviving partner is not taken into account under the rules of intestate succession.

This can have dramatic consequences. If, for example, a married couple builds a house together and one of the partners subsequently dies, said partner’s relatives are then entitled to inherit and would thus also inherit part of the house. This might mean the surviving partner having to come to an arrangement with the heirs or even potentially sell the house. To prevent these kinds of scenarios from happening, unmarried couples can prepare a will or contract of inheritance. In doing so, it is possible to circumvent the rules of intestate succession.

The testator is able to set out in a will who will inherit and how much. In this way, one can provide unmarried partners with financial security. That being said, the testator does not have carte blanche to do whatever he pleases. For instance, claims to the compulsory portion of the estate and those entitled to inherit need to be taken into account. A will can, of course, also give rise to disputes among the heirs, particularly if heirs feel they may have been overlooked. That is why a will ought to be prepared in such a way that it is as “watertight” as possible. In doing so, it is important to consider several formal requirements in relation to a handwritten will, such as the inclusion of the date and a signature, but also the possibility of pitfalls lurking within the wording.

To ensure that the testamentary arrangements are implemented in accordance with the testator’s wishes, lawyers who are experienced in the field of succession law can advise on all issues pertaining to wills and contracts of inheritance.

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