A call for the reform of German succession law

March 20, 2025

What happens to our assets after our death? Most individuals will face this question at some point in their lives – because they are considering who should one day receive their assets or because they themselves are beneficiaries of an inheritance. Yet few people have a detailed understanding of just what German succession law prescribes or of the problems it poses. Remarkably, it has applied in relatively unchanged form since it first came into force as the Fifth Book of the German Civil Code (BGB) in 1900. Most of Germany's neighbouring countries, by contrast, have enacted fundamental reforms in this area over the last two and a half decades. “A general reform of German succession law is overdue,” says Reinhard Zimmermann, Director Emeritus at the Institute. In a lecture delivered to the German Association of Professors of Private Law (Zivilrechtslehrervereinigung), he offered detailed reasons in support of this view. What are his recommendations to the legislature?

You have been researching the historical and comparative dimensions of succession law for many years. What are its basic structures?

The starting point in Germany, as in other countries of a similar cultural background, is the principle of testamentary freedom, which for its part constitutes an expression of private autonomy in the area of succession law. Every lawmaker addressing this topic is therefore faced with the following basic questions: How can we ensure that testators are in a position to decide freely on the distribution of their assets? How can we make certain that this disposition indeed originates from them? What are the limitations of testamentary freedom? In particular, is there a need to protect the closest family members from disinheritance and, if such protection is deemed to be necessary, how should it be structured? How should succession be organized if the deceased has not executed a disposition mortis causa? And how is the administration of the estate to be regulated, i.e. how is the distribution of the estate to the (testamentary or statutory) beneficiaries and to the creditors of the deceased to be dealt with?

How did the regulation of German succession law in the BGB originate?

The legislature had the task of providing a kind of integrating restatement of the laws existing at the end of the 19^th century in a contemporary form. A large number of different legal systems applied in Germany at the time, including the French Code civil, the Prussian General Land Law, the Saxon Civil Code, and the Roman law of antiquity as then interpreted. Thus, wherever possible, the common tradition underlying these laws had to be identified. In many cases, however, these laws exhibited significant differences. Decisions therefore had to be taken, and these decisions did not always turn out to be successful. In some cases, regulatory models new to the territory of the German Empire were adopted and the question must be asked whether they have worked well in their new legal environment.

„A general reform of German succession law is overdue.“

– Reinhard Zimmermann –

Can you name some of the principal legislative choices and describe whether they have been successful?

The provisions of the BGB have proven problematic with regard to all of the issues mentioned above.

(i) The introduction of the holographic (handwritten) will – which was extremely controversial at the time – was correct in principle, but the requirements established in the BGB were initially far too strict. In addition, in the age of digital communication, the requirement of “handwriting” appears in an entirely different light than it did in 1900.

(ii) Demographic developments have created an increasingly urgent need to ensure that elderly people and individuals in need of assistance are in a position to author self-determined wills.

(iii) Giving the testator's next of kin the right to a “compulsory portion” has proven to be highly problematic; it restricts testamentary freedom to a very significant degree without there being a rational reason for such restriction.

(iv) As far as the rules on intestate succession are concerned (which apply where the deceased has not executed a disposition mortis causa), the draftsmen of the BGB adopted a parentelic system, which stems from the Natural law thinking of the early modern period and which had already been in force in Austria for almost a century. In principle, that decision has stood the test of time, as it implements the idea of family succession in a particularly convincing way. But what has been much less convincing is the idea of unlimited family succession, which means that people very distantly related to the deceased can become heirs (in the sense of being his universal successors) – people with whom there was or is no contact at all. In this regard, the German Civil Code opted against an identifiable trend in most other legal systems to provide a limitation, with the result that German law is now almost wholly isolated in comparative perspective.

(v) Finally, the rules on the administration of estates are extremely complex and contain a number of pitfalls; in this respect too, German law adopts an approach without parallel in other legal systems.

How do the indicated shortcomings manifest themselves?

On the one hand, testamentary dispositions whose authenticity nobody doubts are not rarely held to be invalid while, on the other hand, dispositions made by testators in situations of particular vulnerability are often unproblematically recognized. We find practice manuals of more than a thousand pages on the details concerning the right to a compulsory portion (e.g. its manner of calculation) and on ways of circumventing it. In addition, the compulsory portion can be a significant disruptive factor in the succession to a family business. Unlimited family succession has led to the emergence of an “heir hunter” industry. And one of the main shortcomings of the German system of estate administration is that the German Civil Code does not normally allow heirs to accept an inheritance and administer it themselves without running the risk that liability for the deceased's debts will extend to their own assets. Often, therefore, heirs disclaim the inheritance in order to avoid that risk. Obviously that is an unsatisfactory situation.

What options does the legislature possess?

A look at foreign legal systems is helpful here. The German lawmaker should consider updating the form requirements for wills (or even introduce a harmless error rule that applies in a number of jurisdictions in the tradition of the common law). A new remedy could be introduced allowing wills to be rescinded on the ground of “undue influence”. As far as intestate succession is concerned, the succession of the deceased’s family members should be limited to the first two classes (i.e. the deceased’s descendants and his parents and their descendants plus possibly grandparents); after which the estate is to escheat to the state.

„One of the main shortcomings of the German system of estate administration is
that the German Civil Code does not normally allow heirs to accept
an inheritance and administer it themselves without running the risk that liability
for the deceased's debts will extend to their own assets.“

– Reinhard Zimmermann –

The right to a compulsory portion should be replaced by a needs-based maintenance model, a change of approach which would significantly strengthen testamentary freedom. And with regard to the administration of estates, a change of system in the form of a general statutory limitation of the heir’s liability for debts of the deceased to the deceased’s assets is advisable. That would, at the same time, eliminate the difference existing between situations where there is a single heir and where there are co-heirs – a difference which is difficult to explain. For such a change of system there are models not only in other legal systems but also in the history of German law.

What other shortcomings do you perceive?

There are a number of other issues that have been mentioned for some time, e.g. by Anne Röthel in her report for the 2010 German Jurists Forum. There is, for instance, the question of further strengthening the statutory inheritance rights of surviving spouses, since the latter are typically today more dependent on the inheritance than the deceased’s children. Furthermore, the equalization of gains between spouses in the event of death has thus far been implemented by means of a 25% lump sum increase in the statutory inheritance share. That is a particularly unsatisfactory solution. An unbundling of matrimonial property law and succession law is called for.

A third point relates to the equalization of economically significant inter vivos gifts as between the deceased’s descendants. According to the BGB, as it stands, this takes place only in exceptional cases, particularly in the case of advancements for settling a child in life, or on the occasion of marriage. A concept closely linked to the economic and social circumstances of an earlier era is thus of central importance. The presumed will of the testator, the normative claim to equal treatment, and the idea of an anticipated inheritance all point in the same direction, namely a significant expansion of the duty of equalization of benefits received inter vivos. The existing provisions on joint wills are problematic because they offer inadequate protection against being legally committed without due consideration. Other points can also be mentioned; a general historical and critical assessment of the entire Fifth Book of the BGB appears to be required, taking into account the comparative perspective.

Finally, it must also be considered whether and to what extent the legislature should use inheritance as an opportunity to siphon off assets for the benefit of society as a whole. It is a cause for concern that leading German tax lawyers have long regarded the current inheritance tax regime as a prime example of misguided political and economic policy.

Reinhard Zimmermann, Grundentscheidungen im Recht der Erbfolge des BGB: Rechtsgeschichte, Rechtsvergleichung, Rechtspolitik, Archiv für die civilistische Praxis 225 (2025) (forthcoming)

Header: Max Planck Institute for Comparative and International Private Law / Johanna Detering