Many married couples wrote their Berlin will (Berliner Testament) themselves years ago: they appoint each other as sole heirs, and after the death of the surviving spouse the children inherit. Once a cross-border element is added, the question of whether the Berlin will remains valid arises anew, for example through a move abroad in retirement, a spouse with a different nationality, a holiday home or children living abroad. Is the document formally valid? Does the surviving spouse remain bound? And which succession law ultimately decides how the estate is distributed?
This article places the joint will under Sections 2265 et seq. of the German Civil Code (Bürgerliches Gesetzbuch, BGB) within the framework of the European Succession Regulation (Regulation (EU) No 650/2012, EuErbVO). The general rules on the succession law applicable after a move abroad are set out in the article on international succession law on emigration; this article deals with the specific features of the spouses’ will. Legal position: October 2026.
What Defines a Berlin Will under German Law
Under Section 2265 BGB, only spouses can make a joint will (gemeinschaftliches Testament), and registered civil partners via Section 10 (4) of the Civil Partnership Act (LPartG). A private joint will is sufficient under Section 2267 BGB if one spouse writes and signs the will by hand and the other co-signs it by hand. Notarisation is also possible.
According to the rule of interpretation in Section 2269 (1) BGB, the third party who is to receive the combined estate after the death of the surviving spouse is, in case of doubt, appointed as heir of the spouse who dies last (unity solution, Einheitslösung). The children are then final heirs (Schlusserben).
The core is the binding effect:
- Mutual dependency (Wechselbezüglichkeit, Section 2270 BGB): Dispositions that one spouse would not have made without those of the other stand and fall together. Where the spouses appoint each other as heirs, this is presumed in case of doubt. Only appointments of heirs, legacies, testamentary burdens and the choice of the applicable succession law can be mutually dependent (Section 2270 (3) BGB).
- Revocation during lifetime (Section 2271 (1) BGB): It is only possible in the form of Section 2296 BGB, i.e. by a notarised declaration to the other spouse. A secret new will is not sufficient.
- Binding effect after the first death (Section 2271 (2) BGB): On the death of the first spouse, the right of revocation lapses. The survivor can in principle only free themselves by disclaiming what they were given, unless a reservation of amendment has been agreed.
It is precisely this binding effect that is vulnerable in cross-border situations, because some foreign legal systems do not recognise a contract-like binding effect in a will.
Three Levels of Review: Form, Law Governing the Making of the Will, Law Applicable to Succession
Typical triggers for a cross-border element are a later move abroad, different nationalities, making the will abroad, assets abroad or final heirs abroad. The EuErbVO then separates several levels with their own connecting factors:
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| Level | Question | Applicable rule |
|---|---|---|
| Form | Is the document formally valid? | Hague Convention on the Form of Testamentary Dispositions of 1961 (precedence under Article 75 (1) EuErbVO), otherwise Article 27 EuErbVO |
| Admissibility, substantive validity, binding effect | Is the joint will admissible, does the binding effect apply? | Article 24 or Article 25 EuErbVO, fixed at the time the will was made |
| Law applicable to succession | Who inherits, which compulsory share or forced heirship rights exist? | Article 21 EuErbVO (last habitual residence) or chosen law under Article 22 EuErbVO |
| Tax | Which state taxes the acquisition? | National inheritance tax law, where applicable double tax treaty |
A will can therefore be formally valid and binding and still have a different effect than planned, because at the time of death a different law applies to the succession (Erbstatut) than when the will was made.
Formal Validity: The Hague Convention on the Form of Testamentary Dispositions
The EuErbVO does not affect the Hague Convention of 5 October 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions (Article 75 (1) EuErbVO). Under its Article 1, a testamentary disposition is formally valid if it complies, among others, with the law of the place where it was made, of a nationality, of the domicile or of the habitual residence of the testator (at the time it was made or at death) or, for immovable property, with the law of the place where the property is located. Article 4 expressly extends the Convention to dispositions made by several persons in the same document.
A Berlin will made in Germany by German spouses under Section 2267 BGB therefore as a rule remains formally valid even after a move. Formal validity, however, says nothing about whether a joint will is admissible in substance. Whether a state understands its prohibition of joint wills as a question of form or of admissibility should be clarified by an adviser in the state concerned. More on the form of wills in the article Will with residence abroad.
Joint Will or Agreement as to Succession? Classification under the EuErbVO
The EuErbVO uses its own concepts:
- Agreement as to succession (Erbvertrag, Article 3 (1) point (b)): an agreement, including an agreement resulting from mutual wills, which confers, modifies or terminates rights to the future estate or estates of one or more persons party to the agreement.
- Joint will (Article 3 (1) point (c)): a will drawn up in one instrument by two or more persons.
The classification determines the conflict-of-laws rule. Article 24 EuErbVO governs the admissibility and substantive validity of dispositions other than agreements as to succession, but does not mention the binding effect. Article 25 EuErbVO expressly also covers the binding effects and the conditions for dissolution in the case of agreements as to succession.
In Germany, the prevailing view is that a joint will with mutually dependent dispositions falls under the concept of an agreement as to succession. The Federal Court of Justice (Bundesgerichtshof, BGH) has classified such a will in this way (BGH, decision of 24 February 2021, IV ZB 33/20). Whether courts of other Member States will decide in the same way is not certain; as far as can be seen, there is no decision of the Court of Justice of the European Union specifically on this question. The question should therefore be treated as open.
If one follows the classification as an agreement as to succession, Article 25 (2) EuErbVO applies: if the will concerns the estates of both spouses, it is only admissible if it is admissible under every law that would have applied to the succession of each spouse had they died at the time the will was made. Substantive validity and binding effect are governed by the law with which the will has the closest connection. This law governing the making of the will (Errichtungsstatut) is frozen and does not change through a later move.
What a Later Move Abroad Changes and What It Does Not
What generally remains stable: If both spouses had their habitual residence in Germany when the will was made, admissibility and binding effect are governed by German law. From the perspective of the EuErbVO, a later move abroad in principle leaves the binding effect under Sections 2270, 2271 BGB unaffected.
What can change: Under Article 21 EuErbVO, the law applicable to succession is determined by the last habitual residence. Without a choice of law, after a permanent move the succession law of the new country of residence applies, for example to compulsory share or forced heirship rights, the spouse’s statutory inheritance rights and the administration of the estate. A Berlin will that gives the children nothing on the first death can then run into mandatory participation rights that go further than the German compulsory share (Pflichtteil).
A Berlin will does not become invalid across the board through a move to another EU state, nor is it simply replaced by the succession law there. From the perspective of the EuErbVO, the will regularly remains valid, but its economic effect can change considerably under the new law applicable to succession. In addition, courts may refuse to apply foreign law if it is manifestly incompatible with public policy (Article 35 EuErbVO). How authorities and courts in the country of residence actually treat a German spouses’ will must be assessed by a local adviser.
Older wills: For dispositions made before 17 August 2015, the transitional rule of Article 83 (3) EuErbVO applies: they are valid if they meet the requirements of the Regulation or were valid under the private international law of certain states in force at the time. Under Article 83 (4) EuErbVO, the law under which such a disposition was made is deemed to have been chosen if the testator could have chosen it. Whether this fiction applies to an older Berlin will has to be examined in each individual case. How far the Federal Court of Justice goes here is shown by decision IV ZB 33/20: the will to be assessed in that case dated from March 1996, and the court based the implied choice of law on Article 83 (2) EuErbVO. This transitional provision is intended to preserve earlier dispositions of property upon death as far as possible.
Different Nationalities or a Will Made Abroad
If the spouses already have different connections when the will is made, matters become more difficult. If the couple lived at the time the will was made in a state whose law does not permit joint wills or binding agreements as to succession, the will may be inadmissible from the outset under Article 25 (2) EuErbVO, even if both are German. The same can apply if the spouses lived in different states when the will was made. Article 25 (3) EuErbVO provides a remedy: for admissibility, substantive validity and binding effect, the law that one of the persons concerned could have chosen under Article 22 EuErbVO can be chosen.
States That Do Not Recognise Joint Wills
Several legal systems, including within the EU, do not recognise the joint will or binding dispositions in the nature of an agreement as to succession, or view them unfavourably. Which states these are and what consequences are drawn there is a question of foreign law; an adviser in the state concerned must be consulted for this. From the German perspective:
- In the states applying the EuErbVO, the Regulation determines the applicable law uniformly. A Berlin will that is valid under Article 25 EuErbVO must in principle also be respected where the domestic law does not recognise joint wills. Denmark and Ireland do not apply the Regulation.
- Third countries apply their own conflict-of-laws rules. For real estate in states that apply the law of the place where the property is located, the estate may be split (Nachlassspaltung); see the article on inheriting property abroad.
- Land registry and register authorities abroad often require additional evidence, translations or an apostille.
Choice of Law as the Central Planning Tool
An express choice of law is an effective means of stabilising a Berlin will in cross-border situations. A distinction must be made between:
- Choice of the law applicable to succession (Article 22 EuErbVO): Each spouse can choose the law of their nationality for their estate, expressly in a disposition of property upon death or as demonstrated by its terms. German nationals thereby secure German succession law, including the compulsory share rules, even after a move abroad.
- Choice of law for admissibility and binding effect (Article 24 (2), Article 25 (3) EuErbVO): It secures the binding effect where the spouses have different connections.
Under Section 2270 (3) BGB, the choice of law itself can be mutually dependent; the survivor then cannot revoke it unilaterally after the first death. This should be decided deliberately.
A choice of law can also be made implicitly. In proceedings IV ZB 33/20, the Federal Court of Justice stated that this is to be assessed autonomously under EU law and treated specifically German terms such as Schlusserbe (final heir) as an indication. Relying on this remains risky, because in the event of a dispute the implied choice must first be established. In addition, spouses without a common nationality cannot choose a common law applicable to succession; each can only choose the law of their own nationality.
Revocation and Divorce Where the Spouses Live in Different States
Often overlooked in practice: revoking a mutually dependent disposition during one’s lifetime requires a notarised declaration that must be received by the other spouse (Section 2271 (1) in conjunction with Section 2296 BGB). If the spouses live separately in different states, even proving receipt can be difficult. A new individual will is not sufficient.
On divorce, a joint will is in principle ineffective in its entirety under Section 2268 (1) in conjunction with Section 2077 BGB, unless it is to be assumed that the dispositions were also intended for this case (Section 2268 (2) BGB). This presupposes that German law is applicable. Which law applies to the divorce itself is dealt with in the article on divorce with a residence abroad under Rome III.
Compulsory Share: The Risk on the First Death
Under a Berlin will, the children are disinherited on the first death and, under German law, can demand from the survivor the compulsory share amounting to half of the statutory share of the inheritance (Section 2303 (1) BGB). The will often provides for a compulsory share penalty clause (Pflichtteilsstrafklausel).
If a foreign law applies to the succession at the time of death, the existence and scope of such rights are governed by that law. Some legal systems provide for a share in the estate in rem (forced heirship, Noterbrecht) instead of a monetary claim; a compulsory share penalty clause may then come to nothing. More on this in the article on compulsory share rights with assets abroad. One possible arrangement is a notarised waiver of the compulsory share by the children, whose effect must also be examined separately where a foreign law applies to the succession.
Inheritance Tax: Double Acquisition and Double Taxation
Double acquisition in Germany. Under the unity solution, the survivor first inherits everything, and later the children inherit from the survivor. The assets of the first spouse to die are thus taxed twice, and the children’s allowances in relation to the first spouse to die remain unused. The allowances under Section 16 (1) of the Inheritance and Gift Tax Act (ErbStG) amount, with unlimited tax liability, to 500,000 euros for spouses and 400,000 euros for children. Section 15 (3) ErbStG mitigates this: to the extent that the survivor was bound and the assets of the first spouse to die are still present on the second death, the relationship of the final heirs to the first spouse to die can be taken as the basis on application. Whether this also applies where a foreign law governs the succession has not been clearly settled.
Double taxation between states. Under Section 2 (1) no. 1 ErbStG, Germany taxes the entire acquisition if the deceased or the acquirer is a resident. This also includes German nationals who have not been permanently resident abroad for more than five years without having a residence in Germany. An emigrated married couple therefore remains subject to unlimited tax liability for a time, while the new country of residence may also levy tax. In the case of limited tax liability, the allowance is reduced under Section 16 (2) ErbStG. Inheritance tax double tax treaties exist with only a few states; otherwise, the tax credit under Section 21 ErbStG may be considered, which requires an application and is subject to a five-year period. Details in the article on inheritance tax and double tax treaties.
Additional uncertainty arises because the Federal Constitutional Court (Bundesverfassungsgericht) is hearing two cases on central provisions of inheritance tax law in October 2026. Before implementing an arrangement, a binding ruling (verbindliche Auskunft) from the tax office under Section 89 (2) of the Fiscal Code (AO) is advisable, and in cross-border cases, where appropriate, also a ruling in the other state.
Typical Mistakes in Practice
- Will not reviewed after the move. The binding effect may remain, but the law applicable to succession changes nevertheless without a choice of law.
- Reliance solely on an implied choice of law. The clarification shifts to the probate proceedings.
- Second will abroad without coordination. It cannot unilaterally revoke binding dispositions, but creates disputes over interpretation.
- Compulsory share penalty clause without regard to the future law applicable to succession.
- Tax and civil law mixed up. A valid will can be unfavourable for tax purposes.
- Jurisdiction and proof of succession not considered. See probate court jurisdiction with a residence abroad.
Example (fictitious): Anna and Bernd make a handwritten Berlin will in Germany in 2012 without a choice of law and move permanently to another EU Member State in 2020, where Bernd dies. Formal validity and binding effect are assessed under German law; Anna’s commitment to the appointment of the children as final heirs in principle remains. The succession to Bernd, however, is governed by the law of the state of residence, unless German law applies via Article 83 (4) EuErbVO or an implied choice of law. If that law grants the children forced heirship rights, Anna will not become sole heir as planned.
Checklist for Married Couples with a Berlin Will and a Cross-Border Element
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| Check point | Why it matters |
|---|---|
| Record the place where the will was made and the residence of both spouses at that time | Determines the law governing the making of the will |
| Clarify nationalities | Limits the possible choices of law |
| Include an express choice of law for succession and binding effect | Stabilises the effect after a move abroad |
| Deliberately regulate mutual dependency and reservation of amendment | Determines the survivor’s flexibility |
| List assets by country of location | Shows risks of a split estate |
| Check compulsory share or forced heirship rights under the future law applicable to succession | Secures the protection of the spouse |
| Have inheritance tax reviewed in both states | Avoids a double burden |
| Involve an adviser in the new country of residence | Clarifies the treatment on site |
Conclusion
A Berlin will does not automatically lose its validity because of a cross-border element. In terms of form, the Hague Convention on the Form of Testamentary Dispositions protects most spouses’ wills made in Germany. For admissibility and binding effect, the EuErbVO freezes the law at the time the will was made; the classification as an agreement as to succession is supported by the Federal Court of Justice, but has not been conclusively settled across Europe. The real danger lies in the law applicable to succession: without a choice of law, after a move abroad the law of the new state of residence decides on compulsory share or forced heirship rights and thus on whether the protection of the surviving spouse holds. Anyone who has or plans cross-border connections should make an express choice of law, have the tax consequences in both states reviewed and involve a local adviser.
Frequently Asked Questions
Is my German Berlin will still valid after a move abroad?
As regards form and binding effect, as a rule yes, if it was made in Germany by spouses habitually resident in Germany. Without a choice of law, however, the succession is otherwise governed by the law of the new state of residence, which can considerably change its effect.
Is the Berlin will treated as a will or as an agreement as to succession under the EuErbVO?
With mutually dependent dispositions, it is predominantly classified in Germany as an agreement as to succession within the meaning of Article 3 (1) point (b) EuErbVO, as also by the Federal Court of Justice (IV ZB 33/20). Article 25 EuErbVO then applies. Whether foreign courts will follow is not certain.
Can we add a choice of law subsequently?
Yes, in a new disposition of property upon death. If it is to be mutually dependent, both spouses should make it together. Only the law of a nationality of the respective spouse can be chosen.
What happens if our new country of residence does not recognise joint wills?
In the states applying the EuErbVO, the Regulation determines the applicable law; a will validly made in Germany must in principle be respected. Third countries apply their own rules. In both cases, a local adviser should review the practice there.
Is inheritance tax incurred twice on a Berlin will with a cross-border element?
Both the double acquisition of the same assets and taxation by two states are possible. Section 15 (3) ErbStG can help against the first effect, and a double tax treaty or the tax credit under Section 21 ErbStG against the second. Where the legal position is unclear, a binding ruling under Section 89 (2) AO is advisable.
Attorney Dr. Johannes Fiala and the Munich-based firm, which focuses on international succession law, tax law and asset protection, advise married couples with cross-border connections on drafting and reviewing their Berlin will, from the choice of law under the EuErbVO and securing the binding effect to inheritance tax planning in both states. Dr. Fiala has published extensively on questions of emigration and asset protection. Please get in touch with the firm without obligation to discuss your individual situation in an initial consultation.
