The German Federal Supreme Court (BGH, ruling of 22 July 2015, file no. IV ZR 437/14) decided that the declaration of the insurance customer “the widowed spouse” as the beneficiary is to be interpreted in such a way that “the spouse married to the policyholder at the time of the declaration of the subscription right is to be entitled to subscribe”. If a widow now goes away empty-handed, she may be able to demand (then double) payment from the insurer and from the agent, because this is a constant case law in insurance sales, § 6 VVG.
Surprising interpretation of the BGH?
As far as staffing levels are concerned – for example in criminal court – there are actually only four valid alternative answers: “single, married, divorced, or widowed”: So if you are divorced, you cannot be widowed. The Federal Court of Justice (BGH) states that the interpretation requires that “the point in time at which the policyholder makes his declaration” be taken into account. So according to the motto – after seven divorces, each with one remarriage, the first divorced woman still receives the insurance benefit if the subscription right was agreed with the insurer at that time.
principle of equal treatment violated by the Federal Court of Justice?
You have to be a mathematician if you just think logically and ask yourself what happens in the case of a life insurance policy with a subscription right “for the widow” (still a wife) in the event of a first divorce? The Federal Court of Justice (decision of 5 October 2011, ref. XII ZB 555/10) ruled that a pension insurance policy held by the husband (and future deceased) must be taken into account in the context of the pension equalisation scheme. If it is an insurance policy with a capital payment, a compensation under matrimonial property law is made in the context of the gain. The first wife has therefore normally already received her “fair” legal share of the life insurance in the divorce. If the first divorced woman then receives something again – although already compensated, as is usually the case in the course of her divorce – the question of justice arises: If justice and equal treatment were sometimes addressed in court canteens “heads quickly dropped over the salad sauce and the Fusilli siciliana” (Federal Judge Thomas Fischer). Legal trainees are fobbed off in their training by the plaintiff calling out “Mr. Judge, I want my right, I want justice” – whereupon the court says “from me, however, you will only get a judgment”. However, the higher regional courts usually act differently – if only for reasons of age.
Between the revocable and the irrevocable subscription right, you can actually do anything you want – including any number of approaches due to incorrect advice. It should be possible, for example, to grant an irrevocable subscription right on death, which may then be revoked in certain cases, or be subject to a resolutory condition. Example: It is irrevocable until 31.12.2020, or as long as Merkel is German Chancellor, or until a loan is repaid and this is confirmed to the insurer.
In order to avoid a race of heirs, one could certainly also grant a subscription right that is revocable only during one’s own lifetime, but otherwise becomes irrevocable immediately upon death. It’s just a pity that the insurance industry has so far hardly taken this up in its forms. It would have to accept it, as it is a unilateral right to shape the situation. For the insurance broker and the lawyer who does not know the case law, such cases are like roulette – you only find out after a few years whether the court has been of the same opinion. Many a testator and policyholder deliberately favours his current widow, the only widow, according to the wording of the subscription right, since she did not receive any gain or pension settlement until the date of death. This must then be documented “court-proof” or an alternative design must be recommended.
Simply giving the name of the beneficiary with date of birth is safe as long as you do not forget later on that the person is not meant to be, as after a divorce. The phrase “widow” was probably well meant to avoid exactly that, by perhaps being the current one – which, according to the Federal Court of Justice, turns out to be a mistake. Wife would be just as bad.
Better could be “the last spouse living in valid marriage”. But since a large part of those who marry are unaware of the importance of their declaration of will, due to insufficient instruction, many marriages could simply be null and void, as Pope Francis noted.
In the case of a void marriage, of course, no one can become a widow. This only applies to indissoluble church marriages – but a part of the civil marriages could also fall under this, as can already be seen from the BGB. On the other hand, church marriage continues even after a civil divorce and remarriage.
Therefore, it could also be doubtful if a marriage is only concluded in a church, which is permissible in Germany, and the current wife is described as entitled to draw. Later, a new marriage can be entered into at the registry office: to whom does the life insurer have to pay?
If, as an heir, you do not like another person’s entitlement to benefit, but have failed to win the race for it by revoking that entitlement, you often have another chance even after years. After all, many life insurance policies themselves are still revocable today.
Upon their revocation, the subscription right granted shall also lapse. The insurer must therefore pay to the heirs the premiums plus the benefits drawn less the risk costs, reduced by the part of the surrender value in the death benefit. Actuarial appraisals such as those required by the revoking heir for the statement of uses required by the Federal Court of Justice (BGH) result in very considerable additional payments.
by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm
published under
www.versicherungsbote.de on 08.08.2016
Link: http://www.versicherungsbote.de/id/4843797/BGH-Lebensversicherung-Witwe-geschieden-Bezugsrecht
and
www.pt-magazin.de (published on 01.08.2016 under the heading: Why does the widow go away empty-handed?)
Link: http://www.pt-magazin.de/de/gesellschaft/recht/warum-geht-die-witwe-leer-aus_ir4kb69c.html
and
www.procontra-online.de (published on 08.08.2016 under the heading: Life insurance pays to ex-wife despite widow’s subscription right)
and
published in “Der Koment, trade journal for showmen and market traders” 10.11.2016
(Edition 5552, page 6 under the heading: Former divorced wife receives life insurance despite subscription right for the current widow)
and
www.experten.de (published on 23.11.2017 under the heading: company pensions: When nobody gets a widow’s pension)
and
www.network-karriere.de (published in Network-Karriere 08/2016, page 30 under the heading: Life insurance: Who is the widow?)
and
www.seniorconsulting.de/blog (Published on 06.09.2016 under the heading: Who is now the widow?)
Link: http://www.seniorconsulting.de/blog/wer-ist-denn-nun-die-witwe/
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About the author
Dr. Johannes FialaPhD, MBA, MM
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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