The Berliner Testament is the most common form of joint will between spouses. It offers advantages in terms of mutual protection, but also has inheritance and tax disadvantages that should be considered.
What Is a Berliner Testament?
In a Berliner Testament, spouses (or registered life partners) appoint each other as sole heirs. After the death of the surviving partner, the joint children or other designated persons inherit as final heirs (§ 2269 BGB).
It is a joint will that may only be executed by spouses or registered life partners (§ 2265 BGB). Unmarried partners cannot execute a joint will but would need to resort to an inheritance contract instead.
Typical Structure
A Berliner Testament typically contains the following provisions:
- Mutual appointment as sole heir: The surviving spouse becomes the sole heir of the first to die.
- Designation of final heirs: After the death of the surviving spouse, the joint children (or other persons) inherit the entire estate.
- Compulsory share penalty clause (if applicable): Children who claim their compulsory share upon the first death are also limited to the compulsory share upon the second death.
Advantages of the Berliner Testament
Protection of the Surviving Spouse
The central advantage is that the surviving spouse, as sole heir, can dispose of the entire estate. No community of heirs with the children is created, which considerably simplifies the administration of the assets.
Preservation of the Family Home
The surviving spouse can continue to use the family home without restriction and need not fear any dispute with the children over the property.
Simple Structure
The Berliner Testament is a clear and comprehensible arrangement that is widely used and well established in practice.
Binding Effect
Reciprocal dispositions (i.e., dispositions that one spouse made only because the other also made their disposition) can no longer be unilaterally revoked after the death of the first spouse (§ 2271 Abs. 2 BGB). This protects the final heirs.
Disadvantages and Risks
Tax Disadvantages
The most significant disadvantage lies in the tax treatment:
Wasted tax allowances: Upon the death of the first spouse, only the surviving partner inherits. The children's personal tax allowances (EUR 400,000 per parent) are not utilised upon the first death. Upon the death of the second parent, the allowances are available only once.
Example: A married couple with two children leaves an estate of EUR 1,600,000. Under the Berliner Testament, the surviving spouse first inherits everything (tax-free due to the EUR 500,000 allowance). Upon the second death, the children each inherit EUR 800,000. After deducting the allowance of EUR 400,000 each, EUR 400,000 each is taxable. Had the estate been distributed across both deaths, the allowances could have been utilised twice.
Compulsory Share Claims by Children
The children are disinherited upon the death of the first parent and may claim their compulsory share (§ 2303 BGB). The compulsory share amounts to half of the statutory inheritance share. This can place a financial burden on the surviving spouse, particularly where the estate is predominantly tied up in real property.
Binding Effect as a Disadvantage
The binding effect that protects the final heirs can become a disadvantage for the surviving spouse. They can no longer amend the reciprocal dispositions, even if circumstances have fundamentally changed (e.g., estrangement from a child, new partnership).
Limited Freedom of Disposition
The surviving spouse's freedom of disposition is restricted. Gifts intended to disadvantage the final heirs may be challenged by the final heirs pursuant to § 2287 BGB.
Variants
Legacy Solution
Instead of appointing the children as final heirs, they receive legacies upon the first death in the amount of their tax allowances. This utilises the tax allowances while the surviving spouse remains the sole heir.
Preliminary and Subsequent Succession
The surviving spouse is appointed as preliminary heir, the children as subsequent heirs. This preserves the estate of the first deceased spouse for the children but restricts the surviving spouse's freedom of disposition more severely than full heir status.
Remarriage Clause
In the event of the surviving spouse's remarriage, it may be stipulated that the final heir designation lapses or that the surviving spouse must surrender part of the estate to the final heirs.
Modification Reservation
A limited modification reservation may be included for the benefit of the surviving spouse (e.g., the authority to alter the inheritance shares among the children).
Form and Execution
A Berliner Testament may be executed in handwritten or notarial form. For handwritten execution, one spouse must write the entire will by hand and both must sign. Notarial execution provides additional legal certainty and may offer the advantage that no certificate of inheritance is required in the event of death.
Conclusion
The Berliner Testament is an effective instrument for mutual protection between spouses. However, the tax disadvantages and limited flexibility should be carefully weighed. Particularly for larger estates, an individually tailored arrangement that takes account of the children's tax allowances is advisable.
