Legal succession
Who inherits if there is no will? The statutory order of succession regulates in detail which relatives inherit in which order and how the estate is divided. In this article, you will find out how the order system works, what rights spouses have and why it can make sense to settle the estate yourself.
Legal succession in Germany
Anyone who dies in Germany not only leaves behind personal memories, but often also assets, real estate, valuables or company shares. If there is a will or an inheritance contract, the distribution of the estate is based on the wishes of the deceased. However, more than half of Germans have not made a last will and testament. In these cases, the law steps in: statutory succession automatically applies, which is regulated in Sections 1924 ff. of the German Civil Code (BGB). It bindingly determines which relatives inherit in which order and which shares they are entitled to.
The aim of intestate succession is to keep the deceased’s assets in the family and ensure a clear, fair distribution. Especially if there is no last will and testament, it is important to know how this legal order works in order to avoid surprises or disputes later on.
When does intestate succession take effect?
Statutory succession always applies if there is no disposition of property upon death or if a will or contract of inheritance only governs part of the estate. Even if a will is invalid, for example due to formal errors or a successful challenge, the statutory law of succession automatically applies.
So there are three main situations:
- Complete lack of disposition: The entire estate is distributed in accordance with the statutory order of succession.
- Partial regulation: The will only determines certain objects or sums of money, the rest is subject to intestate succession.
- Invalidity of a disposition: If the disposition does not legally exist, the statutory succession applies in full.
The system of order in German inheritance law
Legal succession in Germany is based on the so-called parentel system. This system divides the deceased’s relatives into different “orders”, each of which represents a specific family group, from children to distant ancestors such as great-grandparents.
The principle is simple and strict: a higher order excludes the subsequent order. This means that the first step is to check whether there are any heirs of the first order. Only if there is no one in this group do the heirs of the second order come into play. Only if there is no one living there either do the members of the third order take their place, and so on. This ensures that the estate always remains in the closest family line. This hierarchical system is the basis of intestate succession and ensures a clear, comprehensible order. In the following, we therefore take a closer look at the
First-order heirs - children and grandchildren
The first order includes the descendants of the deceased. These include:
- natural children, regardless of whether they were born in or out of wedlock,
- adopted minor children who are legally equal to biological children,
- Grandchildren, great-grandchildren and all other direct descendants.
If a child dies before the testator, their children (i.e. grandchildren) take over the inheritance. This principle is called
Example:
A testator leaves behind three children. Each child would inherit one third in equal shares. If one of these children is already deceased and leaves behind two children of their own, these grandchildren jointly inherit the third of their deceased parent, i.e. one sixth each.
Second-order heirs - parents and their descendants
If there are no heirs of the first order, the relatives of the second order take their place. These include the
Example:
A testator has no children. His mother is still alive, his father is already deceased. However, the father left behind another son, i.e. the deceased’s brother. In this case, the mother receives half of the estate, while the other half goes to the brother.
Third-order heirs - grandparents and their descendants
If there are no children, grandchildren or great-grandchildren (first order) or parents or siblings (second order), the third order applies. This includes the
Example:
A testator with no children and no living parents leaves behind his maternal grandmother. His maternal grandfather is already deceased and had two children, i.e. the deceased’s aunt and uncle. The grandmother inherits half, the aunt and uncle share the other half.
The spouse or registered partner as legal heir
In addition to relatives, the surviving spouse or registered partner also has their own statutory inheritance entitlement. This depends on the
In the statutory matrimonial property regime of community of accrued gains (which applies in Germany unless otherwise agreed), the inheritance quota looks like this:
- With first-order heirs: The spouse inherits half of the estate, the other half goes to the children.
- With second-order heirs or grandparents: The spouse inherits three quarters, the rest goes to the parents or grandparents.
- Without relatives up to the third order: The spouse inherits alone.
In other matrimonial property regimes, such as separation of property, the quotas change. In the case of separation of property, the surviving spouse and one child each inherit half. If there are two children, each inherits a third. If there are three or more children, the spouse receives a quarter.
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Special regulations in statutory inheritance law
Adoption
Underage adopted children have full parity with biological children – they have the same inheritance claims against both the adoptive parents and their relatives. In the case of adult adoptions, the claim is usually limited to the adoptive parents themselves.
Illegitimate children
Since a change in the law, legitimate and illegitimate children are treated equally in terms of inheritance law. Only in rare historical exceptions (birth before July 1, 1949 in the old federal states) do differences still apply.
Mandatory portion
Even if a will does not grant anything to close relatives, they are entitled to the so-called compulsory portion. This is a purely monetary claim amounting to half of the statutory inheritance share. As a rule, children, spouses and, under certain circumstances, parents are entitled to a compulsory portion.
Waiver of an inheritance
As heirs inherit not only assets but also debts, it is possible to waive the inheritance. This decision must be declared to the probate court within six weeks of becoming aware of the inheritance.
Practical example of statutory succession
Suppose Mr. Schmidt dies without a will. He leaves behind:
- his wife (community of accrued gains),
- two children,
- a condominium worth €400,000 and savings of €100,000.
In this case inherits:
- The wife 50% of the total assets → € 250,000,
- each child 25% → € 125,000 each.
If there were no children, but the mother and a brother of the deceased were still alive, it would look like this:
- The wife would receive 75%,
- the mother 25 %,
- the brother would be left empty-handed because the mother has priority as a direct second-order heir.
Why you should know the legal succession
Legal succession ensures a regulated and comprehensible division of the estate if there are no personal dispositions. It is based strictly on the family relationship to the deceased. If you would like your estate to be distributed differently, for example in favour of certain people or charitable organizations, you should definitely draw up a
Knowledge of the legal succession is not only important for testators, but also for potential heirs. It helps to assess what claims exist in the event of an inheritance and can clarify in advance whether a will would make sense in order to avoid conflicts.
Do you have further questions about statutory succession?
Here you will find the answers to the most relevant questions about intestate succession.
Do unmarried partners have a statutory right of inheritance?
Under German law, unmarried cohabiting partners have no statutory inheritance rights, even if they have lived together for many years. If one of the partners dies, the other partner has no claims without a will, neither to the estate nor to a compulsory portion. In order to protect the partner, a last will and testament is therefore essential. Typical solutions are a joint will or an inheritance contract. Couples can also ensure that the surviving partner is protected through powers of attorney, gifts during their lifetime or residential rights.
Can stepchildren also become legal heirs?
Stepchildren are not legal heirs. A child who is not descended from the testator is not entitled to a legal share of the estate. Only if an adoption has taken place is the stepchild legally treated as a natural child and thus automatically inherits in the first order. Without adoption, the only option is to include stepchildren in a will or inheritance contract. Many patchwork families solve this by means of a so-called “Berlin will”, in which both partners appoint each other and later also provide for each other’s children.
What happens if there are no legal heirs at all?
If the deceased leaves no relatives and has not made a will, the entire estate goes to the state. In legal terms, this is known as fiscal inheritance. The state acts as a normal heir, but with one important special feature: it is not personally liable for the estate’s liabilities, but only for the estate’s assets. This means that creditors can go away empty-handed if the estate is insufficient. It can therefore make sense for distant relatives to prove their entitlement to inherit in case of doubt so that the state is not automatically appointed as heir.
Is it possible to avoid intestate succession during your lifetime?
Yes, through a testamentary disposition such as a will or an inheritance contract. In addition, assets can also be given away or transferred during your lifetime, for example via a gift agreement or a transfer agreement for real estate. In this way, the statutory succession can be completely or partially overridden.
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