When a spouse dies, the community of accrued gains (Zugewinngemeinschaft) comes to an end. Anyone who is married to a foreign partner, lives or has lived abroad, or owns assets in several countries then has to answer two questions separately: which law governs the matrimonial property regime, and which law governs succession? The community of accrued gains on death with an international connection is therefore not purely a family law topic but an interface between matrimonial property law, succession law and inheritance tax. If the two legal systems diverge, the surviving spouse may receive considerably more or considerably less than they would expect under German law. This article sets out the legal position under German law and the relevant EU Regulations (as of September 2026) and shows where the typical mistakes lie. For foreign law, an adviser in the country concerned should be consulted.
The Basics: What the Community of Accrued Gains Means on Death
Spouses who have not concluded a marital agreement (Ehevertrag) live, under German law, in the statutory matrimonial property regime of the community of accrued gains. The spouses’ assets remain separate during the marriage; joint ownership does not arise automatically. Equalisation of accrued gains (Zugewinnausgleich) takes place only when the regime ends: the accrued gain is the amount by which a spouse’s final assets exceed their initial assets (Section 1373 BGB, German Civil Code). What a spouse receives during the marriage by inheritance or gift is added to their initial assets (Section 1374 (2) BGB) and is therefore not equalised. If divorce ends the regime, the accrued gain is, arithmetically, shared half and half.
If the marriage ends through death, the law provides two routes that must be kept apart:
← Tabelle nach links wischen, um weitere Spalten zu sehen
| Solution | Legal basis | How is equalisation achieved? | When does it apply? |
|---|---|---|---|
| Succession law (flat-rate) solution | Section 1371 (1) BGB | The spouse’s statutory share of the estate increases by one quarter of the estate, irrespective of whether an accrued gain actually arose | The spouse becomes a statutory heir (Section 1371 (1) BGB); if the spouse is not an heir and receives no legacy, subsection (2) applies |
| Matrimonial property law (concrete) solution | Section 1371 (2) and (3) BGB, Sections 1373 et seq. BGB | The accrued gain is calculated concretely and the spouse receives an equalisation claim; in addition, only the so-called small compulsory share (kleiner Pflichtteil) based on the non-increased share of the estate | The spouse does not become an heir and receives no legacy (subsection (2)) or disclaims the inheritance (subsection (3)) |
Together with the share of the estate under Section 1931 BGB, the usual result is as follows: alongside children, the spouse receives one quarter plus the additional quarter, that is, one half. Alongside the deceased’s parents, siblings or grandparents, it is one half plus one quarter, that is, three quarters. If there are no such relatives, the spouse inherits alone (Section 1931 (2) BGB). If there are children from another marriage of the deceased, the spouse must provide them from the additional quarter with reasonable means for their education (Section 1371 (4) BGB). An overview of statutory succession for emigrants can be found in our article on statutory succession when emigrating.
To calculate the concrete accrued gain, the spouse also has a right to information about the deceased’s assets (Section 1379 BGB). The equalisation claim is subject to the regular limitation period of three years (Sections 195, 199 BGB). The former special limitation period under Section 1378 (4) BGB no longer applies.
Two Legal Systems That Can Diverge
Where there is an international connection, German law does not apply automatically. Two connecting factors must be distinguished.
Law governing the succession. For deaths occurring on or after 17 August 2015, the EU Succession Regulation (Regulation (EU) No 650/2012) determines the applicable succession law. In principle, the deceased’s last habitual residence is decisive (Article 21). Anyone who has validly chosen the law of their nationality by will or by an agreement as to succession (Erbvertrag) is subject to that law (Article 22). When German succession law still applies to a person living abroad is explained in our article on German inheritance law and residence abroad.
Law governing the matrimonial property regime. For marriages concluded on or after 29 January 2019, and for spouses who have made a choice of law since then, the EU Matrimonial Property Regulation (Regulation (EU) 2016/1103) applies. It applies only in the Member States participating in the enhanced cooperation, including Germany; you should check the current list of participating states before putting any arrangements in place. Absent a choice of law, the first common habitual residence after the marriage is decisive; only then do common nationality and the closest connection follow (Article 26). This matrimonial property law is in principle immutable: a later move does not change it. For marriages from the period before that date, the former German conflict-of-laws rule (Article 15 EGBGB, Introductory Act to the German Civil Code, old version) remains decisive, which connects primarily to common nationality and, failing that, to common residence at the time of the marriage.
The result: a couple can be married under a German community of accrued gains while foreign law applies to succession because of the last residence or a choice of law. Conversely, where the last residence was in Germany, German succession law may apply while the matrimonial property regime is subject to foreign law, for example a community of acquisitions (Errungenschaftsgemeinschaft). The Regulation also provides that the courts having jurisdiction over the estate also decide, under certain conditions, on matrimonial property questions connected with the estate (Article 4 of the EU Matrimonial Property Regulation). On the question of which court has jurisdiction, see our article on probate court jurisdiction and foreign residence.
The Turning Point Set by the CJEU: Mahnkopf
It was long disputed whether the flat-rate increase under Section 1371 (1) BGB is to be classified as a matter of matrimonial property law or of succession law. This has consequences: if it were a matter of matrimonial property law, it would follow the law governing the matrimonial property regime and could also be applied alongside a foreign law of succession. Until then, the Federal Court of Justice (Bundesgerichtshof) and the prevailing view had predominantly classified it as a matter of matrimonial property law.
In its judgment of 1 March 2018 in the Mahnkopf case (C-558/16), the Court of Justice of the European Union held that the increase in the statutory share of the estate under Section 1371 (1) BGB falls within the scope of the Succession Regulation, and is therefore to be classified as a matter of succession law. The increased share must accordingly be shown in the European Certificate of Succession. The practical consequences for international cases are:
- If German law governs the succession, the increase under Section 1371 (1) BGB applies where the matrimonial property regime corresponds to the German community of accrued gains.
- If foreign law governs the succession, the increase does not apply merely because the matrimonial property regime is subject to German law. The inheritance share is then determined by the foreign succession law. How the matrimonial property outcome is to be balanced in this case is assessed differently in the legal literature; much remains open at the level of the highest courts. Decisions from the period before Mahnkopf can be used only to a limited extent, because they are based on the classification as matrimonial property law that prevailed at the time and on the former conflict-of-laws rules.
- If German law governs the succession but the matrimonial property regime is foreign, it is disputed whether and how the increase must be adjusted.
An example for illustration (simplified, with fictitious figures, without liabilities of the estate): Sabine and Jannis live under the German statutory matrimonial property regime and have two children. Jannis dies, leaving an estate of EUR 600,000. His initial assets were EUR 0, as were Sabine’s; her final assets amount to EUR 100,000. The concrete equalisation of accrued gains would be EUR 250,000 (accrued gain of EUR 600,000 compared with EUR 100,000, half of the difference). Under German succession law, Sabine would receive a flat half of the estate, that is, EUR 300,000. If, on the other hand, succession is governed by a law that gives the spouse only one quarter alongside children and recognises no matrimonial property increase, she would, without any correction, be left with EUR 150,000. Whether, and to what extent, concrete equalisation can be claimed in addition depends on the adaptation (Anpassung) between the two legal systems. The difference can run into six figures.
A second, likewise fictitious example with an international connection: a German couple marries in Germany in 2010 and lives under the statutory matrimonial property regime. In 2020 they move to Spain, where the husband dies in 2026. His last habitual residence was therefore in Spain, so that, absent a choice of law, Spanish succession law applies under Article 21 of the EU Succession Regulation (law governing the succession). The matrimonial property regime, by contrast, remains German under the former German conflict-of-laws rules (law governing the matrimonial property regime), because a move does not change it. The widow therefore cannot readily rely on the additional quarter under Section 1371 (1) BGB; how the matrimonial property outcome is to be combined with Spanish succession law must be clarified in the individual case with advisers in both countries. Had the couple previously chosen German law for the succession (Article 22 of the EU Succession Regulation), the outcome would be different.
You should therefore examine both applicable laws separately before drafting wills or marital agreements.
Inheritance Tax: Section 5 ErbStG and the Foreign Matrimonial Property Regime
The community of accrued gains also has tax effects. Under Section 5 (1) ErbStG (German Inheritance and Gift Tax Act), the amount that the surviving spouse could claim as equalisation of accrued gains is not treated as a taxable acquisition. This tax exemption is calculated notionally, that is, even where in fact only the flat-rate route under Section 1371 (1) BGB is used. The remainder is subject to inheritance tax, with a personal allowance of EUR 500,000 for spouses (Section 16 (1) no. 1 ErbStG); children have EUR 400,000 per parent (Section 16 (1) no. 2 ErbStG).
Example (fictitious figures): if Sabine would have received EUR 250,000 as accrued gain in the event of a divorce and now inherits EUR 300,000, only EUR 50,000 is relevant for tax purposes, and this is covered by the allowance.
Two points are important where there is an international connection:
- Foreign matrimonial property regimes. Whether Section 5 ErbStG also applies to foreign matrimonial property regimes depends on whether the regime is comparable to the German community of accrued gains, for example because it provides for an arithmetical equalisation of increases in assets through a monetary claim. In the case of separation of property or a genuine community of property, by contrast, as a rule, the exemption does not apply; only the allowances then remain. Classifying foreign matrimonial property regimes requires knowledge of the foreign law; consult a local adviser for this.
- Elective community of accrued gains (Wahl-Zugewinngemeinschaft). For spouses who have chosen the matrimonial property regime under the Franco-German agreement of 4 February 2010 (Section 1519 BGB), the exemption under Section 5 (3) ErbStG applies accordingly. This regime deviates from the standard model in how the accrued gain is calculated, in particular for assets that a spouse has inherited or received as a gift.
It remains open how Mahnkopf affects tax where a German matrimonial property regime and foreign succession law coincide. Whether Section 5 ErbStG applies without restriction in these cases has not yet been conclusively settled and should be examined in advance in every individual case. How inheritance tax works across borders is shown in our article on German inheritance tax and double taxation treaties. The extended unlimited tax liability must also be borne in mind: German nationals remain subject to unlimited inheritance tax liability for up to five years after emigrating (Section 2 (1) no. 1 (b) ErbStG).
Unclear legal position: obtain a binding ruling. Where the German tax treatment is not settled or may foreseeably change, an application to the tax office for a binding ruling (verbindliche Auskunft, Section 89(2) of the German Fiscal Code, AO) should come before implementation. For a precisely defined transaction that has not yet been carried out, the ruling binds the tax office, and it is subject to a fee. In our view, a tax adviser who does not recommend this in such a situation is acting irresponsibly: the client risks having to litigate over the outcome years later, which costs time and money.
Separation of Property and Community of Accrued Gains Compared
Separation of property (Gütertrennung) is often agreed for the sake of simplicity. It is possible only by marital agreement (Section 1410 BGB: notarially recorded), and each spouse keeps their own assets. The price is paid in succession law and in tax law:
← Tabelle nach links wischen, um weitere Spalten zu sehen
| Feature | Community of accrued gains | Separation of property |
|---|---|---|
| Spouse’s statutory share of the estate (with children) | 1/2 (1/4 plus 1/4 under Section 1371 (1) BGB) | Equal share per head: with one child 1/2, with two children 1/3, with three or more children at least 1/4 (Section 1931 (4) BGB) |
| Tax-free accrued gain under Section 5 ErbStG | Yes | No |
| Equalisation on divorce | Equalisation of accrued gains | No equalisation |
Planning Options for Marriages with an International Connection
Modified community of accrued gains. Under Section 1408 BGB there is freedom of contract, provided neither spouse is disadvantaged in a manner contrary to public morals (sittenwidrig). Individual assets, such as company shares or a property, can be excluded from the equalisation of accrued gains while the regime otherwise remains in place.
Separation model. It is possible to agree on separation of property for the event of divorce while retaining the community of accrued gains for the event of death. This makes it possible to avoid equalisation claims in a dispute, while the advantages of Section 1371 BGB and Section 5 ErbStG can be preserved on death; whether, and how, this holds up for tax purposes must be examined in the individual case. The drafting belongs in the hands of a notary with tax advice.
Choice of law for matrimonial property. Under the EU Matrimonial Property Regulation, spouses can choose the law of the state of their habitual residence or the law of a state whose nationality one of them holds (Article 22). The choice of law must be made in writing, dated and signed by both spouses (Article 23); the formal requirements of the state of residence may impose stricter requirements (Article 23 (2)). In Germany, notarial recording is therefore required. For further guidance, see our article on the matrimonial property clause in an international marital agreement.
Choice of law for succession. By will or by an agreement as to succession, a person can choose the law of their nationality for the succession as a whole (Article 22 of the EU Succession Regulation). The aim is usually to align the law governing the succession with the law governing the matrimonial property regime. Whether such alignment makes sense depends on the individual case; more on this in our article on wills and residence abroad.
Anyone drafting agreements before leaving Germany should expressly raise Section 5 ErbStG and the international connection with the notary. Compulsory share issues involving foreign assets are covered in our article on compulsory portion rights over foreign assets.
Deadlines and Typical Mistakes in Practice
Right of election within six weeks or six months. The surviving spouse can disclaim the inheritance and then claim the concrete accrued gain plus the small compulsory share (Section 1371 (3) BGB). Whether this is worthwhile is a matter of calculation: where the accrued gain is low, the flat-rate route is usually more favourable; where the accrued gain is high and the share of the estate small, disclaiming is more likely to pay off. The period for disclaiming is six weeks (Section 1944 (1) BGB), or six months if the deceased had their last residence only abroad or the heir is abroad when the period begins (Section 1944 (3) BGB). If foreign law governs the succession, a different period may apply to the disclaimer.
Notification deadline for the tax office. An acquisition upon death must be notified to the tax office within three months of becoming aware of it (Section 30 ErbStG), including where assets are located abroad.
Common mistakes:
- A will is drawn up without checking which succession law applies; for arrangements such as the joint will (gemeinschaftliches Testament), this form may be inadmissible under foreign law.
- On moving abroad, it is assumed that the matrimonial property regime changes too. The law governing the succession changes; under the Regulation, the law governing the matrimonial property regime as a rule does not.
- A marital agreement or a choice of matrimonial property law is drafted without regard to the event of death, so that the flat-rate increase comes to nothing.
- Inheritance tax is considered only under the law of the state of residence, although Germany may continue to tax.
- The foreign matrimonial property regime is treated across the board as separation of property or as a community of accrued gains without having it examined.
Conclusion
In marriages with an international connection, it is not the matrimonial property regime alone that is decisive, but the interplay between the law governing the matrimonial property regime and the law governing the succession. Since Mahnkopf, the increase of the inheritance share by one quarter is to be classified as succession law and applies only if German succession law is applicable. You should therefore examine in good time which law applies to your marriage and to your estate, keep deadlines in view, and use marital agreements and choices of law to secure alignment or an intended divergence. For tax purposes, the exemption under Section 5 ErbStG remains a significant advantage, whose scope must be carefully clarified where foreign matrimonial property regimes are involved.
Frequently Asked Questions
Does the surviving spouse also receive an additional quarter where foreign succession law applies?
Not automatically. Following Mahnkopf, the increase belongs to succession law. It therefore applies only if German succession law governs the estate and the matrimonial property regime corresponds to the German community of accrued gains. Where foreign law governs the succession, that law determines the share; any possible equalisation via the matrimonial property regime must be examined in the individual case.
Does our matrimonial property regime change if we move abroad?
Under the EU Matrimonial Property Regulation, the applicable matrimonial property law is in principle immutable. A move does not change it, unless the spouses choose a different law or a court changes the connecting factor under special conditions (Article 26 (3)). The law governing the succession, by contrast, can change with the habitual residence.
Is the equalisation of accrued gains on death tax-free?
The notional equalisation of accrued gains is tax-free under Section 5 ErbStG if the matrimonial property regime corresponds to the German community of accrued gains or, in the case of a foreign regime, is comparable to it. Any enrichment beyond that is taxed after deduction of the allowance of EUR 500,000.
Can I disclaim the inheritance in order to claim the concrete accrued gain?
Yes. Under German law, the spouse can disclaim and then claim the concrete accrued gain and the small compulsory share (Section 1371 (3) BGB). The period is generally six weeks; it is six months if the deceased last lived only abroad or the heir is abroad when the period begins (Section 1944 (3) BGB). Check the financial consequences beforehand.
Is a European Certificate of Succession sufficient to prove the increased share?
In principle, yes, if German succession law applies: the certificate is recognised in the EU states that apply the Succession Regulation. In Mahnkopf, the CJEU held that the increase under Section 1371 (1) BGB must be shown in the European Certificate of Succession.
Should I have my marital agreement or my will reviewed before emigrating?
Yes. Before emigrating, the choice of law, the matrimonial property regime and dispositions upon death can still be coordinated with one another. Afterwards, different connecting factors apply in part.
Attorney Dr. Johannes Fiala and the law firm have published extensively on international succession law and on asset protection for emigrants, and support clients in coordinating the matrimonial property regime, succession and inheritance tax where there is an international connection. Please contact the firm without obligation to have your individual situation discussed in an initial consultation.
