Already sick – which LV goes?

Life insurance protection for insured persons and policyholders who are already ill: what alternative arrangements are available here, with and without health issues?


The (future) policyholder (UN) only has to answer truthfully and completely to the insurer (VR) his application questions, which have to be made at least in text form, according to the circumstances of the risk, §§ 19 I, 32 VVG. Agents are the “eyes and ears” of the board of directors, so that their knowledge is considered to be known to the board of directors, § 69 I No. 1 VVG. In the case of the contract conclusion model and the Invitatiomodel, the UN’s duty of notification lasts until the submission of its offer or acceptance declaration. The BoD’s rights of withdrawal and termination in the event of incorrect information must be notified in text form, § 19 V VVG.


Options for withdrawal, rescission, cancellation and contract adjustment

If the duty of disclosure is intentionally violated or grossly negligently by suppressing obvious considerations, the BoD may resign, section 19 II VVG. According to § 19 IV VVG, a contract adjustment can be considered if the BoD would have concluded a contract – at different conditions (e.g. regarding premium, scope of services) – had it known the circumstances.


If the BoD withdraws from the contract, it shall be released from the payment of benefits in the event of subsequent insurance claims

If the insured event occurs prior to the BoD’s resignation, the BoD shall provide benefits if the breach of the duty of disclosure affects a fact that is not causal either for the occurrence or determination of the insured event or for the determination or scope of the insurer’s duty to provide benefits, § 21 (2). TWO VVG.

As long as the insurance exists, up to the effective date of cancellation or withdrawal, premium is owed, § 39 I VVG.


Contestation for fraudulent misrepresentation or merely termination?

The BoD can challenge on the grounds of fraudulent misrepresentation if the UN deliberately provided incorrect information, section 22 VVG. The BoD is released from its obligation to perform by effective challenge within one year of knowledge of the deception, section 21 II VVG.

In the event of only slight negligence or blamelessness on the part of the UN, e.g. if a doctor’s appointment was forgotten, the BoD may terminate the insurance contract with one month’s notice, Section 19 III VVG. However – depending on the BoD’s acceptance guidelines – the BoD has no right of termination if it would have concluded the contract on different terms, section 19 IV VVG. However, the UN must demonstrate and prove this.


The BoD has one month from the date of knowledge of the facts to withdraw or terminate the contract and is obliged to give reasons. After five years from the conclusion of the contract, these rights of structuring expire, provided that no insured event has occurred before, § 21 III VVG. In the case of malice or intent, the period is 10 years, even if an insured event had occurred previously, § 124 III BGB (BGH, judgement of 25.11.2015, Ref.: IV ZR 277/14.


Insurance cover even if the customer is seriously ill and actually uninsurable?

Resourceful brokers spread the risk across various disability (BU) VRs, not only to get the risk accommodated at all, but also to have fewer questions to answer for smaller sums insured. Time and again there are temporary special offers with fewer health questions, such as “have you been ill for more than two weeks in the last 5 years?


Of course, the (future) UN can also decide to tell the full truth to an agent under witnesses, if the agent does not write it down and counts as eye and ear. However, the BoD may then still invoke error and withdraw from the contract. Although it must then pay compensation, this only consists of the repayment of contributions if the UN could not have taken out insurance elsewhere, unless it had rejected the application in error.


An alternative would be to wait for 10 years after a fraudulent intent before applying for benefits.


A risk life insurance completely without health questions and not expensive is available at the building society, if you have a loan there in its amount with maximum limits.

BUs without risk issues are also found in pension funds.

The statutory social insurance institutions (GKV, DRV) do not ask health questions either – so that incapacity for work can be covered. Clever lawyers optimize benefits by having the statutes of different pension funds actuarially compared before deciding on a headquarters somewhere and a branch office at the place of work.


Advantages of little secrets?

You can also conceal your illness history by moving abroad and then taking out health insurance for the first time, as a very healthy person without a medical past, and in the case of new doctors, not giving anything in the medical history. Doctors pay separately and rely on the confidentiality is also a good idea. Many doctors do not check an identity – you can assume any one for camouflage. Cash payment or cash transfer at the post office does the rest, and a camouflage address or a post office box – only the invoice has to arrive. You don’t have to leave a wide trail. The insurer will have to believe that you have not seen a doctor in the best of health for 30 years.


by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm


with friendly permission of

published on 27.04.2016



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About the author

Dr. Johannes Fiala Dr. Johannes Fiala

Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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