OLG Oldenburg, 05.05.2009, Ref.: 12 U 3/09
The right to a compulsory portion is regulated in Sections 2303 - 2338 of the German Civil Code (BGB) and guarantees all descendants, parents and the deceased's spouse or registered partner that they will receive a share of the estate even if they have been excluded from their statutory succession by disposition on death of the deceased.
The purpose of the right to a compulsory portion is therefore to protect the statutory right of succession from the effects of testamentary freedom. The prerequisite for the right to a compulsory portion is the exclusion of the beneficiary from the statutory succession by disposition of property upon death.
To calculate the compulsory portion, the proportion of the statutory inheritance share is used in the case of statutory succession. Half of this then corresponds to the compulsory portion (Section 2303 (1) sentence 2 BGB).
When calculating the compulsory portion, however, Section 2310 sentence 1 BGB must be observed, according to which those who are excluded from the succession by testamentary disposition or who have renounced the inheritance or have been declared unworthy of inheritance are included in the calculation.
The estate value to be recognised is based on the existence and value of the estate at the time of the inheritance (Section 2311 (1) BGB), which can also be determined by means of an estimate in accordance with Section 2311 (2) BGB.
To determine the value of the estate, liabilities such as testator's debts and inheritance debts are deducted, Section 2313 BGB.
If only one heir is claimed by the beneficiary of the compulsory portion, the heir can demand pro rata compensation from the other heirs for the payment of the compulsory portion to the beneficiary of the compulsory portion in accordance with Sections 2058, 426 (1) BGB.
This is because the heirs are jointly and severally liable for the joint liabilities of the estate pursuant to Section 2058 BGB.
A decision by the Oldenburg Higher Regional Court on 5 May 2009 dealt with the question of whether the heir claimed by the person entitled to a compulsory portion could still demand pro rata compensation from the other heirs ten years after the inheritance.
Facts: The testatrix died in 1999 and left EUR 300,000 to her daughter and two grandchildren. After the estate was divided up, another son of the deceased claimed his compulsory portion of around EUR 66,000 from the plaintiff.
The plaintiff was subsequently ordered to pay the compulsory portion in another legal dispute.
A further four years later, the plaintiff demanded pro rata compensation from his sister for the compulsory portion paid to the testator's son. The sister, however, invoked the statute of limitations
OLG Oldenburg: The Oldenburg Higher Regional Court, which heard the appeal, found in favour of the plaintiff and ruled that the equalisation claim of a co-heir under Sections 2058, 426 (1) BGB is a claim based on inheritance law, which is subject to the 30-year limitation period pursuant to Section 197 (1) No. 2 BGB.
§ Section 197 para. 1 no. 2 BGB is to be understood as meaning that 'claims under inheritance law' refers to all claims arising 'from' Book 5 of the German Civil Code, which is entitled 'Inheritance Law'.
Particularly in the case of claims arising from the joint and several liability of the co-heirs under Section 2058 BGB, the 'relevant' circumstances under inheritance law may only be conclusively clarified some time after the inheritance - and thus after the expiry of a three-year limitation period under Section 195 BGB.
If, for example, a person entitled to a compulsory portion only becomes aware of his or her entitlement more than three years after the inheritance and after the estate has been distributed, and if he or she only asserts his or her claim to a compulsory portion, which is not yet time-barred pursuant to Section 2332 (1) BGB, against one of the heirs, then, contrary to the assumption of the heirs, the circumstances under inheritance law have not yet been clarified when the estate is distributed.
However, even in this case, the co-heir against whom a claim is made must have the option of obtaining compensation from the other jointly and severally liable heirs pursuant to Section 2058 BGB.
Source: OLG Oldenburg
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