When making a will, also consider the case of separation - succession remains in place until divorce or new arrangement

When married couples separate, they generally do not want to leave anything to each other. However, divorce is only possible after one year at the earliest. If one of the ex-partners dies within this period, the statutory inheritance entitlement continues to exist. The statutory right of inheritance only becomes ineffective once an application has been filed and the conditions for divorce have been met. Spouses should therefore consider the consequences of separation and divorce in terms of inheritance law at an early stage and arrange this with a notary. This applies all the more to unmarried partners who conclude an inheritance contract.

Wills only become ineffective upon divorce

In principle, the mere separation of a married couple has no effect on inheritance law. So if one of the spouses has named the other as heir in a will or if there is a joint will or contract of inheritance, the longer-living ex-partner will inherit in the event of death, although this would presumably no longer correspond to the will of the testator. As a rule, all of these dispositions only become ineffective upon divorce. In the case of intestate succession, if there is neither a will nor a contract of inheritance, the right of inheritance and compulsory portion lapses when the application is filed and the conditions for divorce are met.

Not every will can be changed unilaterally

Even before a divorce, married couples have various options for reorganizing their last will and testament. If it is a simple will, it can be unilaterally replaced by a new will or simply destroyed at any time. If there is a joint will with alternating dispositions, a unilateral change during your lifetime is only possible by notarization of the declaration of revocation and receipt of this declaration by the spouse. Married couples should therefore formulate their wishes in the event of divorce when drawing up their will. If spouses or non-marital partners have concluded an inheritance contract, they can only revoke it by contract, will with the consent of the other or withdrawal. Withdrawal is, however, subject to special conditions.

Divorce not possible immediately at any time

Divorce is of great importance in matters of inheritance law. Before spouses divorce, however, they must have lived apart for a year. This is the case if there is no longer a domestic partnership and one spouse clearly does not want to re-establish it. Separation also applies if the spouses live apart from "table and bed" in the shared home and no longer provide each other with economic or utility services. If there are initial defects in a marriage, for example because one partner was forced to say yes, it can also be annulled. In this case, the spouses' right of inheritance also lapses. Divorce and annulment can only be granted on application and by court order.

Mandatory portion even if excluded from inheritance

Despite separation, it is not possible to simply "disinherit" the other spouse completely by means of a will. If the longer-living spouse has neither become an heir nor a legatee, he or she can demand the statutory compulsory portion from the heirs. This amounts to half of the statutory inheritance share plus any entitlement to equalization of gains. As cohabiting partners who are not married to each other have no reciprocal statutory inheritance rights, there is also no entitlement to a compulsory portion.

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