GRP Rainer LLP

Protective Clauses Regarding Compulsory Parts in Law of Succession

A protective clause concerning compulsory parts must be interpreted as sufficient so that a corresponding earnest request of the compulsory portion against the heirs automatically triggers the protected right.


Cologne, NRW -- (SBWIRE) -- 01/21/2013 -- GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Dusseldorf, Essen, Frankfurt, Hamburg, Munich, Stuttgart, Hanover, Bremen, Nuremberg and London conclude: In this case the successful judicial enforcement or effective renouncement of the inheritance is not required. With its judgment of 18.07.2011 (case No. I-3 Wx 124/11 Z) the Higher Regional Court in Dusseldorf has expressed its opinion on the requirements for the implementation of the protective clause regarding inheritance parts. A protective clause with the phrase "If the children ... after the death of their father, as the first deceased, claim the compulsory parts, let them be entitled to the compulsory portion only after the death of the last deceased among us..." shall sanction undesirable partial claims in case of the first inheritance. The inheritance should pass undiminished to the surviving spouse and remain undisturbed. In addition, none of the offspring will be favoured in the distribution of parental total estate.

Such a clause would be triggered by the conscious assertion of the mandatory portion having regard to the clause. Whatever kind of behaviour was sufficient in a particular case, was not set forth by the clause alone, but was to be determined by means of investigation through interpretation of the will of the testator. From the objective point of view it should be assumed that the deceased protected his surviving spouse by the protective clause against premature splitting of the inheritance and wanted to protect him or her from extra charges which are regularly connected with a dispute about the (allegedly) compulsory portion. In this case the conscious assertion requires only a serious request of the mandatory portion in regard to the heirs, but not it’s judicial enforcement or the renouncement of the inheritance.

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