Inheritance Law in Germany and

Australia (NSW)
1. Introduction

This article gives an overview of inheritance law in Germany and Australia. The article also
highlights aspects of inheritance laws in both countries and indicates how these laws may
affect, for example, German citizens or expatriates living in Australia as well as Australian
residents with assets in both Germany and Australia and people living in Australia with
relatives in Germany.

This article also provides a general comparison of German and Australian inheritance laws. It
does not deal with specific issues, but outlines some of the basic principles of both systems.
The following areas are dealt with:

1.1. Statutory Inheritance;

1.2. Forms of Wills and Making Wills;
1.3. Executors;
1.4. Statutory or Compulsory Portions;
1.5. Taxes; and
1.6. International Aspects.

Inheritance or succession law is not uniform throughout Australia because different

legislation applies in each state and territory. Nevertheless, succession law regimes
throughout Australia are largely similar, and the law in New South Wales (“NSW”) and in the
other states and territories in Australia is generally uniform. Accordingly, any reference in
this article to Australian inheritance law means the law in NSW unless stated otherwise. The
specific character of the Australian legal system, which is based on common law rather than
civil law, confers a range of discretions and powers in the Court and in judges, which under
German law, would be mainly dealt with by legislation.

In Australia, reference is often made to trusts. A trust is a common law concept which is
largely unknown to the German legal system, and should not be confused with the German
concept of Treuhandverhältnis. Under Australian law, a trust exists where a party (a trustee)
who, despite being registered or recorded as the proprietor or owner of the relevant
property (trust property), holds that property on behalf of another person or entity
(beneficiary) or other legally recognised purpose (object). The trustee accordingly has a duty
to administer the trust property for the benefit of the beneficiary or for the specific purpose.

By comparison, the Treuhandverhältnis under German law is a two party relationship, similar
to a principal-agent relationship. In a Treuhandverhältnis, the owner appoints a so-called
“Treuhänder” who acts in favour of, and only as representative for the owner. The owner
remains at all times the beneficial and legal owner of the relevant asset. There are no
beneficiaries.

© 2012 Schweizer Kobras

p130277_022
Page 1
 Inheritance Law in Germany and Australia (NSW)

2. Statutory Inheritance

In this article, statutory inheritance law refers to the legal rules applying under German and
Australian law respectively if a person dies intestate (i.e. wholly or partly without a legally
effective Will or Testamentary Contract under German law).

Note:
The term “the intestate” is used in this article to mean a person who dies intestate. If a
person has made a legally effective Will or a Testamentory Contract under German law then
he or she is referred to in this article as the “testator”.

2.1. Germany

2.1.1. Fundamental aspects

German inheritance law is specifically regulated by the German Civil Code

(Bürgerliches Gesetzbuch). A system of orders is used for determining the
order of inheritance under German law:

2.1.1.1. the first order constitutes the offspring (children, grandchildren,

great-grandchildren etc) of the deceased;
2.1.1.2. parents of the deceased and their issue (deceased’s siblings)
constitute the second order; and
2.1.1.3. grandparents, uncles, aunts, cousins of the deceased and their
issue form the third order.

The deceased’s surviving spouse does not belong to the beneficiaries of the
first or any other order, and is not part of the system of orders. However, he
or she is a statutory beneficiary. A surviving spouse’s entitlement to receive
a share in an estate only flows from the fact of marriage.

2.1.2. Time limits

As a fundamental principle, it should be noted that statutory (i.e. by law) or

testamentary (i.e. by Will or other testamentary instrument) beneficiaries
directly and automatically obtain full joint ownership of the estate at the
time of death of the deceased, whether or not he or she is an intestate or a
testator. The beneficiaries “inherit” all rights and obligations of the
deceased.

A beneficiary can waive his or her claim to an estate within a period of six
weeks after he or she becomes aware of the inheritance. This period is
extended to six months if the deceased’s last place of residence was, or the
beneficiary’s residence is outside Germany.

2.1.3. Statutory inheritance and shares in estates

Under German law, the statutory order of inheritance follows the scheme
described below:

© 2012 Schweizer Kobras

Page 2
 Inheritance Law in Germany and Australia (NSW)

2.1.3.1. the issue of the deceased. The biological and adopted children as
well as children born out of wedlock of the deceased, are the first
in line to inherit. Children always inherit in equal shares;

2.1.3.2. if the deceased has no issue, the estate passes to the beneficiaries
who fall within the second order i.e. the parents of the deceased.
The deceased’s father and mother are each entitled to half of the
estate. If they are no longer alive, the estate falls equally to their
issue, namely the deceased’s siblings;

2.1.3.3. the beneficiaries of the third order are the grandparents of the
deceased. They inherit in equal shares. If one grandparent has
already died, his or her issue will take his or her place; and

2.1.3.4. as mentioned above, the spouse of the deceased as legal

beneficiary inherits outside the system of orders. The spouse is
entitled to one-half of the estate and the relatives of the first order
are entitled to the other half. If there are relatives of the first
order, the surviving spouse would inherit one quarter or one half of
the estate depending on the matrimonial property regime which
applied to the spouse and the deceased. If there are no relatives of
the first order then the spouse inherits three-quarters of the
estate, and the relatives of the second order or the deceased’s
grandparents inherit the other quarter. If there are no living
relatives of the first or second order and no living grandparents of
the deceased then the spouse’s interest overrides the interests of
the grandparents’ issue, so that the spouse is entitled to the whole
estate.

A diagrammatic overview of the respective entitlements in various

situations appears at the end of this article.

2.2. Australia

2.2.1. Fundamental aspects

Statutory inheritance in NSW also follows a system of orders in a similar

manner to Germany. As a result, the NSW statutory rules in case of intestacy
and the system of orders which apply in codified civil law countries are
similar. Since March 2010, the basic principles of statutory inheritance have
been found in the Succession Act 2006 (NSW) (“Succession Act”) which has
replaced the intestacy provisions of the Probate and Administration Act 1898
(NSW) (“PAA”).

2.2.2. Time limits for claims against the estate

The application of time limits for beneficiaries’ claims on estates, whether

pursuant to a Will or in the case of intestacy, is treated fundamentally
differently under the Australian and German legal systems. As indicated in
section 2.1.2 above, a beneficiary of an estate in Germany has a certain time
limit within which to waive or renounce his or her claim on the estate.

© 2012 Schweizer Kobras

Page 3
 Inheritance Law in Germany and Australia (NSW)

However, in Australia, beneficiaries have a certain time after publication of a

particular notice in which to notify the executor or administrator of their
claim. Moreover, beneficiaries, creditors and other persons having a claim
on the estate are all treated in the same way in relation to giving notification
of their claims. The obligation to notify the executor or administrator about
a claim is, however, moderated by two factors: firstly, the executor’s or
administrator’s obligation to inform himself about likely beneficiaries of, and
other claimants on the estate, and secondly, the need to only give
notification if the executor or administrator is not otherwise aware of the
claim or did not have previous notice of the claim.

In Australia, if an executor or administrator publishes a notice giving

beneficiaries (as well as creditors or other persons having a claim on an
estate) at least thirty (30) days in which to notify the executor or
administrator about the claim and then distributes the estate at least six (6)
months after the death of the deceased, the executor or administrator will
not be liable for failing to make distributions to beneficiaries (or creditors or
other persons having a claim on the estate) of which he did not have notice.
If a person believes that he or she is a rightful beneficiary of an estate
(whether pursuant to a Will or on intestacy) and the executor or
administrator is not otherwise already aware of the person’s claim or has not
previously had notice of the person’s claim then the person must give notice
of the claim within thirty (30) days after publication of a Notice of Intention
to Distribute the estate by the executor or administrator. If the person
claiming an interest in the estate does not give notice to the executor or
administrator within that time limit and the estate is distributed more than
six (6) months after the death of the deceased without regard to the
person’s claim then the executor or administrator will not be liable to the
claimant (section 92 PAA). The Notice of Intention to Distribute must be
published in a newspaper circulating in the district where the deceased
resided or, if the deceased was not resident in NSW at the date of his death,
in a Sydney daily newspaper.

The position overall is, in Germany, a person who does not want to become
a beneficiary must act within a certain time limit while, in Australia, a person
who wants to claim on an estate must act within a certain time limit if the
executor or administrator of the estate does not otherwise have notice of
the claim.

2.2.3. Statutory inheritance and shares in estates

A distinction should be made between estates that are wholly regulated by

Will on the one hand, and estates that are partly regulated by Will (partial
intestacy) or wholly unregulated by Will (total intestacy) on the other.

Generally, Australian law allow for absolute freedom of disposition by Will.

If no Will exists, or if a Will exists but it only disposes of part of the real and
personal property of the deceased then the statutory provisions applicable
on intestacy will govern that portion of the estate which is not regulated by
Will.

© 2012 Schweizer Kobras

Page 4
 Inheritance Law in Germany and Australia (NSW)

In the case of full intestacy (i.e. where the deceased did not leave a valid
Will), the entire estate passes under the rules of intestacy. In the case of
partial intestacy (i.e. where the deceased left a valid Will but which did not
dispose of the entire estate), the undisposed part of the estate passes under
the rules of intestacy.

Different alternatives for the distribution of an estate are presented by the

Succession Act depending on who the deceased was survived by. The order
in which the intestate’s relatives will take, and the amount of portion of the
estate which they will respectively be entitled to depends on where those
relatives rank in the order of priority set out in the Succession Act. The order
of priority generally is:

2.2.3.1. spouse;

2.2.3.2. children (or the issue of children if a child predeceases the

intestate);

2.2.3.3. parents;

2.2.3.4. siblings;

2.2.3.5. nieces and nephews;

2.2.3.6. grandparents; and

2.2.3.7. aunts and uncles (or their children if an aunt or uncle predeceases
the intestate).

Under the intestacy rules, a spouse has priority. Accordingly:

2.2.3.1. if the deceased is survived by a spouse, the surviving spouse

inherits the entire estate. This remains the case even if the
intestate left a spouse and issue. Accordingly, the intestate’s
children would receive no share of the intestate’s estate,
irrespective of the size of the estate, if there is a surviving spouse;

2.2.3.2. if the deceased is survived by children from a prior relationship, the

surviving spouse will be entitled to the intestate’s personal effects,
a legacy of $350,000.00 (increased in proportion to increases in the
CPI) (the “statutory legacy”) and a half share of the balance of the
estate. The children from the prior relationship or relationships
will be entitled to the remaining half share of the estate in equal
shares; and

2.2.3.3. if the deceased is survived by more than one spouse (e.g. by both
someone to whom the deceased was legally married as well as
another person with whom the deceased was in a domestic
partnership at the time of his or her death), the estate will be
divided between the spouses in accordance with the mechanism
for determining priority between competing spousal interests set

© 2012 Schweizer Kobras

Page 5
 Inheritance Law in Germany and Australia (NSW)

out in Division 3 of the Succession Act. Surviving children from a

prior relationship will also be entitled to a share of the estate if the
value of the estate (excluding the deceased’s personal effects)
exceeds the statutory legacy amount.

3. Forms of Wills

3.1. Germany

3.1.1. Forms and formal requirements

A Will is the most fundamental means of making provision for the

distribution of property in the event of a person’s death. The other way of
making provision in the event of a person’s death is a Testamentory
Contract. On the basis of the principle of freedom of contract, the testator
can make provision in relation to his or her estate without regard to the
rules of statutory inheritance. This freedom is only limited by statutory
restrictions in respect of shares in the estate to be left to certain family
members (Pflichtteilsrecht) and also by certain moral considerations.

A person who has testamentary capacity and is over 18 years of age, is

entitled to make provision for the distribution of property in the event of his
or her death. This is subject to possible statutory entitlements of the
spouse, the parents and children of the testator. The testator is also free to
make provision concerning all or some of his or her assets.

3.1.2. Will (Testament)

German law recognizes four different forms of testamentary dispositions,

namely:

3.1.2.1. simple Will;

3.1.2.2. Mutual Will;

3.1.2.3. emergency Will; and

3.1.2.4. Testamentory Contract.

For a simple Will to be valid, it must either be prepared and signed in the
presence of a notary, or the entire text of the Will must be handwritten and
signed by the testator. All other forms of writing (such as printing,
photography etc.) would not satisfy the formal requirements. If the Will is
entirely written by the testator, no witnesses are necessary. If the Will is
made in the presence of a notary, the notary must witness the execution of
the document. The formal requirement for a valid signature will be satisfied
once the testator’s authorship can be established without objection. Thus,
for example, the inscription “Your father” is enough to establish the identity
of the writer. However, careful checks must be made to ensure that the
testator can be identified without ambiguity. The date and place of making

© 2012 Schweizer Kobras

Page 6
 Inheritance Law in Germany and Australia (NSW)

the Will are not legal requirements for a simple Will to be valid, but
nevertheless it is recommended that these details be inserted into the Will.

A Mutual Will is reserved for married couples. It can incorporate the special
feature of making “reciprocal provisions”. This means that the consideration
for one spouse making a testamentary provision is the making of a
testamentary provision by the other spouse. The same formal requirements
apply to a Mutual Will as to a simple Will except that it is sufficient if only
one spouse writes out the Will in his or her own hand and both spouses sign
it.

An emergency testament is very rare and only applies in exceptional

situations such as natural disasters, deadly peril etc.

A Testamentory Contract makes provisions on a contractual basis in the

event of death. The person making the contract can make any unilateral
provision in the contract that can also be made by a Will. For a
Testamentory Contract to be valid, it must be prepared by a public notary.
Both parties to the contract must sign the contract in the presence of the
notary. No further witnesses are necessary.

3.2. Australia

3.2.1. Wills

3.2.1.1. Wills

The most common method of dealing with assets after death is to

make a Will. The Will itself may be simple or complex, depending
on many factors.

3.2.1.2. Mutual Wills

An essential aspect of the agreement or contract accompanying

Mutual Wills is that there is an agreement between both testators
to the effect that one party will not revoke or alter his or her Will
without the consent of the other. However, if one party
nevertheless revokes the Mutual Will, the later Will would be valid.
In that case, in accordance with the principles of equity, the
executor of the later Will would nevertheless be obliged to
administer the estate on trust for the beneficiaries under the
Mutual Will.

3.2.2. Formal requirements

The following minimum requirements are necessary in order to ensure that

a Will is validly made under Australian law (section 6 Succession Act):

3.2.2.1. the Will must be in writing; and

© 2012 Schweizer Kobras

Page 7
 Inheritance Law in Germany and Australia (NSW)

3.2.2.2. the testator must sign the document in the presence of two
witnesses who are both present at the same time and in the
presence of the testator.

The Will need not, but is usually signed by the testator at the foot of each
page of the document.

It is important to ensure that no witness is a beneficiary under the Will

otherwise any gift to that witness will generally fail (section 10 Succession
Act).

4. Executors

4.1. Germany

A testator may in his or her Will, nominate an executor of the Will (called
Testamentsvollstrecker). The main duty of such an executor is to carry out the
provisions of the deceased’s Will. An executor of a Will must declare whether he or
she accepts the appointment. This declaration need not take place within a certain
period of time unless the Probate Court notifies the person named in the Will as
executor to declare his or her acceptance within a certain time.

The duties of an executor are (depending on the Will) to:

4.1.1. represent the beneficiaries;

4.1.2. administer the estate;

4.1.3. pay the debts of the estate;

4.1.4. distribute the bequests; and

4.1.5. distribute the residuary estate.

If the Will does not appoint an executor, the German Probate Court having
jurisdiction in the matter may nominate an administrator (Nachlasspfleger) if the
Court considers it is necessary to do so in order to protect the estate’s assets and the
beneficiaries of the estate are unknown or cannot be found.

In Germany, the appointment of an executor for the administration of the estate is

not a legal requirement. However, the appointment of an executor may accelerate
and simplify the administration and distribution of the estate.

4.2. Australia

In Australia, almost every Will does or should nominate an executor. Indeed, if an

executor is not named or has died or is not willing to accept the appointment then
another person or institution (e.g. a relative or the NSW Trustee and Guardian) must
seek to be appointed either as executor of the Will or as administrator of the estate,
and apply for a grant of administration in order to deal with the assets in the estate.

© 2012 Schweizer Kobras

Page 8
 Inheritance Law in Germany and Australia (NSW)

An executor has a far more important and powerful position in Australia than in
Germany. In fact, the choice of executor is a critical estate planning issue. The role
of an executor entails considerable responsibilities. An executor is able to do all that
is legally necessary in order to achieve the due and proper administration of the
estate. In particular, an executor is required to attend to the following matters in
the administration of the estate:

4.2.1. organise any funeral or related service;

4.2.2. collect, maintain and protect assets pending the final distribution of the
estate;

4.2.3. apply for probate of the Will;

4.2.4. invest estate assets pending distribution of the estate;

4.2.5. pay all debts, funeral and testamentary expenses of the deceased and the
estate;

4.2.6. if the estate has earned income, obtain a tax file number and lodge any tax
returns;

4.2.7. establish and administer any trusts created by the Will for minors; and

4.2.8. distribute the estate in accordance with the provisions of the Will.

Note:

In Australia, on the death of the testator, all the deceased’s assets pass to or vest in
the executor (section 44 PAA) who is responsible to deal with them and distribute
them in accordance with the Will. The transfer of ownership is, in effect, only
confirmed by the grant of probate or administration.

However, in Germany, the community of beneficiaries inherits all the deceased’s

assets automatically at the time of death, and not the executor. As a result, all the
beneficiaries need to mutually agree on the distribution of the various assets
between themselves if no executor is nominated in the testamentary instrument or
by the Court.

5. Statutory or Compulsory Portions

The term statutory or compulsory portion (Pflichtteil) refers to the share of the estate that
must be left to certain members of the deceased’s family under German law.

5.1. Germany

As a classic civil law country with codified civil and inheritance laws, in Germany the
testator’s relatives can claim a fixed statutory portion of the estate against a
beneficiary. The compulsory portion is an amount equivalent to one-half of the
person’s entitlement under statutory succession. The claim to a statutory share
arises at the time of inheritance. The claim is binding on the estate, and attaches to

© 2012 Schweizer Kobras

Page 9
 Inheritance Law in Germany and Australia (NSW)

the estate as a whole. The claim is assignable and can be transmitted to another
person or a specified succession of heirs. The period of limitation is three years from
the time the person becomes aware of the inheritance and the testator’s Will.

The people entitled to a statutory share are the deceased’s issue, his or her parents
and his or her spouse. The attached diagrammatic overview also shows the
respective compulsory portions and free quotas in certain circumstances.

5.2. Australia

Australian inheritance law does not recognize fixed statutory shares as provided for
under German law. As Australian law is founded on the English common law system,
“family provision” (similar in some respects to statutory share) claims by “eligible
persons” are dealt with by the Supreme Court under the Succession Act, but only if a
claim is in fact made. It remains within the Court’s discretion whether, to what
extent and on what basis, family provision claims are to be provided for out of the
estate.

6. Taxes

6.1. Germany

6.1.1. Inheritance tax

Inheritance tax is a federal tax in Germany. The tax applies throughout

Germany if at the time the tax liability arises, either the deceased or the
beneficiary:

6.1.1.1. had his or her abode in Germany; or

6.1.1.2. was a German citizen with a continuous abode outside Germany of

no longer than five years.

The rate of tax payable depends on the net value of the estate and the tax
class which the beneficiary belongs to.

The net value of an estate is calculated by deducting the estate liabilities

from the gross value of the estate.

There are three tax classes under German law. The applicable tax class is
determined by the relationship between the deceased and the beneficiary.
That relationship also determines the amount of allowable deductions under
the legislation.

The first tax class comprises:

6.1.1.1. spouse;

6.1.1.2. children and stepchildren;

6.1.1.3. grandchildren; and

© 2012 Schweizer Kobras

Page 10
 Inheritance Law in Germany and Australia (NSW)

6.1.1.4. parents and grandparents, if they are testamentary beneficiaries.

The second tax class comprises:

6.1.1.1. parents and grandparents, in so far as they do not belong to the

first tax class;

6.1.1.2. siblings and their issue;

6.1.1.3. step-parents;

6.1.1.4. children-in-law;

6.1.1.5. parents-in-law; and

6.1.1.6. former spouses.

All other beneficiaries belong to the third tax class.

The lowest tax rate and the highest level of allowable deductions apply to
members of the first tax class. For example, if the net value of the estate
amounts to €512,000.00, the deceased’s spouse would currently receive an
allowable deduction of €306,000.00. Overall in a case like this, a tax rate of
15% would apply.

6.1.2. Capital gains tax

Germany does not have capital gains tax. Therefore, unlike Australia, no
further “delayed death duty” is payable.

6.2. Australia

6.2.1. Inheritance tax and death duties

There is no inheritance tax or death or estate duty payable in Australia or in

any state or territory of Australia. This means that all estate assets in
Australia may be transferred to beneficiaries without incurring any duties or
taxes. Australia does, however, impose capital gains tax in case of many
dispositions. In some instances, capital gains tax can operate as a de facto or
delayed death duty (see 6.2.2 below).

6.2.2. Capital gains tax

Capital Gains Tax (CGT) is a federal tax and accordingly applies throughout
Australia. The rate of CGT is generally dependent on the taxpayer’s marginal
income tax rate for the financial year during which the capital gains tax event
(CGT event) occurs. CGT is not, however, payable on the transfer of assets
under a Will. Accordingly, estate assets may be transferred to beneficiaries
(at least those resident in Australia) without either the estate or the
beneficiaries becoming liable to CGT. If beneficiaries resident overseas are

© 2012 Schweizer Kobras

Page 11
 Inheritance Law in Germany and Australia (NSW)

involved then gifts to them are deemed to be a CGT event which occurred
immediately before the deceased’s death and, as a result, CGT may be
imposed on the estate in respect of the gift.

CGT is generally payable on the disposal of an asset. There are numerous

technical rules relating to when CGT arises and what constitutes a disposal or
deemed disposal of an asset. As a result, the subsequent disposal of estate
assets by beneficiaries who have inherited the assets may give rise to a CGT
liability. The liability would, however, only be payable on the disposal of the
asset.

Liability for, and the amount of CGT payable depends on a number of factors
including the nature of the asset concerned, when the asset was originally
acquired by the testator, when the testator died, when the asset is
subsequently disposed of by the beneficiary, whether the beneficiary is a
natural person or, for example, a corporate entity or a trust, and the
marginal tax rate of the beneficiary at the time of disposal. Certain assets,
such as the testator’s family home, may remain permanently CGT exempt in
the hands of the estate and the beneficiary provided that certain residence
rules are met or the home is disposed of within a particular period after the
testator’s death (generally 3 years).

If an executor or administrator disposes of an estate asset in the course of

administration of the estate (e.g. because the executor or administrator is
directed to do so under the Will or in order to distribute proceeds to or
among beneficiaries), CGT may also be payable on the disposal of the asset.
Liability for the CGT (i.e. whether it is payable by the estate or the
beneficiary(ies)) depends on the wording of the Will.

6.2.3. Tax on assets

Generally there is no tax on assets in Australia, except for land tax payable
on certain classes of real property in certain states.

Because of the different taxes levied and not levied in Germany and Australia, estate
planning for people whose estates are affected by both systems involves careful
thought being given to arranging one’s financial affairs and estate matters in a tax
effective way.

7. International Aspects

7.1. Germany

The EGBGB (Einführungsgesetz zum Bürgerlichen Gesetzbuch) is the relevant German

law that regulates whether a courst has jurisdiction in a matter as well as the
applicable law in international cases.

© 2012 Schweizer Kobras

Page 12
 Inheritance Law in Germany and Australia (NSW)

7.2. Australia

Australia does not have a single federal law regulating international conflict of laws
or private international law as it is also called in common law countries; every state
and territory has its own common law rules.

8. Glossary

Bürgerliches Gesetzbuch German Civil Code

Einführungsgesetz zum Bürgerlichen Gesetzbuch Introduction Code to the German Civil Code
Nachlasspfleger administrator
Pflichtteil statutory or compulsory portion
Testament Will
Testamentsvollstrecker executor
Treuhänder a person who acts in favour of and as
representative for the legal owner
Treuhandverhältnis German trust concept

January 2012

Disclaimer

This article contains comments of a general nature only and is provided as an information service only. The article also
reflects the law as at the date it was written and may not take into account any recent or subsequent developments in the
law. The article is not intended to be relied upon, nor is it a substitute for specific professional advice. No responsibility can
be accepted by Schweizer Kobras, Lawyers & Notaries or the author(s) for any loss occasioned to any person doing
anything as a result of anything contained in the article.

Further Information

For further information please contact:

Norbert Schweizer
Partner
Michael Kobras
Partner

Schweizer Kobras
Lawyers & Notaries
Level 5, 23 - 25 O’Connell Street
Sydney NSW 2000
Telephone: +61 (0) 2 9223 9399
Facsimile: +61 (0) 2 9223 4729
Email: mail@schweizer.com.au
Website: www.schweizer.com.au

© 2012 Schweizer Kobras

Page 13
 Inheritance Law in Germany and Australia (NSW)

Statutory Shares under German Succession Law

Succession Law Statutory Share Statutory Share/Free Quota

Aspects/Personal (deceased died intestate and without (to be considered when drafting a Will
Circumstances Testamentary Contract) /Testamentary Contract)
(Relatives)
Spouse* and issue Spouse 1/2 Spouse 1/4
Issue 1/2 Issue 1/4
Free quota 1/2

Spouse* and both parents Spouse 3/4 Spouse 3/8

(no issue) Father 1/8 Father 1/16
Mother 1/8 Mother 1/16
Free quota 1/2
Spouse* and one parent Spouse 3/4 Spouse 3/8
(no siblings) Parent 1/4 Parent 1/8
Free quota 1/2

Spouse* and one parent Spouse 3/4 Spouse 3/8

and siblings Parent 1/8 Parent 1/16
Siblings 1/8 Siblings 0
Free quota 9/16
Issue only Issue 1 Issue 1/2
Free quota 1/2

Both parents only Father 1/2 Father 1/4

Mother 1/2 Mother 1/4
Free quota 1/2

One parent only Parent 1 Parent 1/2

(no siblings) Free quota 1/2

Siblings only Siblings 1 Siblings 0

Free quota 1

Parents and registered Father 1/8 Father 1/16

partner** Mother 1/8 Mother 1/16
Reg. partner 3/4 Reg. Partner 3/8
Free quota 1/2
Siblings and registered Siblings 1/4 Siblings 0
partner** Reg. partner 3/4 Reg. Partner 3/8
Free quota 5/8

Parents and non-marital Father 1/2 Father 1/4

partner Mother 1/2 Mother 1/4
Non-marital Non-marital
Partner 0 Partner 0
Free quota 1/2

© 2012 Schweizer Kobras

Page 14
 Inheritance Law in Germany and Australia (NSW)

Siblings and non-marital Siblings 1 Siblings 0

partner Non-marital Non-marital
Partner 0 Partner 0
Free quota 1

* if the spouses were married under the default matrimonial property regime of accrual. The entitlement would be
different if the spouses were married under the matrimonial property regime of community of property.
** if the spouses lived in a “Civil Union” (civil partnership registered under the Civil Partnership Code
“Lebenspartnerschaftsgesetz”).

© 2012 Schweizer Kobras

Page 15