A compulsory portion penalty clause (Pflichtteilsstrafklausel) in an international estate works reliably only if the applicable succession law knows a compulsory portion (Pflichtteil) to which it can attach, and if the disposition, usually a joint will, was permissible under the law that governs its making. After emigration the two laws can diverge, so the clause must be reviewed before and after a move.
The compulsory portion penalty clause is among the most frequently used building blocks of the Berlin-style will (Berliner Testament, a joint will in which spouses appoint each other sole heir and the children heirs of the survivor). It is meant to prevent children from demanding their compulsory portion on the death of the first parent and burdening the surviving spouse financially. In an international estate, for example after emigration, with a foreign spouse or with assets abroad, it is open whether the clause works at all. A compulsory portion penalty clause in an international estate depends on which law applies to the succession, whether the joint will is permissible under the law governing its making, and whether a compulsory portion exists at all in the German form under the law governing succession. This article first explains the clause under German law and then answers the questions that arise with a foreign connection. The Berlin-style will as a whole, including form and binding effect, is covered by the article Berlin-Style Will with a Foreign Connection; here the subject is the penalty clause alone. Foreign law itself is not presented; for that a local adviser must be consulted. The legal position is as of October 2026.
The Clause under German Law
Starting Position in the Berlin-Style Will
In a Berlin-style will, spouses appoint each other as heirs and designate the children as final heirs (Schlusserben) of the survivor. On the first death the children are thus disinherited. As descendants, however, they are entitled to a compulsory portion. Under § 2303 (1) BGB the compulsory portion is half of the statutory share and is a monetary claim against the heir, arising with the succession. The surviving spouse can thereby run into liquidity problems, for example if the assets are tied up in the family home.
Example (fictitious figures): The couple Lena and Karl have two children and live under the statutory marital property regime. Karl dies; the estate is 600,000 euros. Each child’s statutory share is a quarter, so the compulsory portion is an eighth, that is 75,000 euros per child. If a child demands this amount, Lena must pay it, even if she has to encumber the house to do so.
What the Clause Achieves
The compulsory portion penalty clause attaches to the demand for the compulsory portion on the first death a consequence for the second: the child who demands is also reduced to the compulsory portion on the death of the survivor or excluded from the succession as final heir. It does not exclude the compulsory portion; it makes demanding it unattractive. Legally it is a conditional order, determined by the wording and the will of the spouses (§§ 133, 2084 BGB). There is no statutory rule.
Questions of Interpretation
What is mainly disputed in practice is what “demanding” or “asserting” means. By decision of 1 February 2022 (21 W 182/21), the Higher Regional Court (Oberlandesgericht) Frankfurt held that, in the case assessed there, a mere demand for correction of an estate inventory did not trigger the clause, because it presupposed the assertion of the compulsory portion. By decision of 21 February 2023 (21 W 104/22), the same court, for a clause that attached not only to the demand but also to receipt of the compulsory portion, required an actual outflow of funds. Other courts have decided differently on different wording. This shows that whether the clause applies depends on the wording, and imprecise clauses generate disputes.
Typical drafting questions are:
- Does a request for information under § 2314 BGB already trigger the consequence, or only the payment demand?
- Does the consequence also apply if a social assistance authority has the claim transferred to itself?
- What happens to the descendants of the demanding child?
- Should the survivor be able to cancel the consequence, for example after a reconciliation? Because of the binding effect of reciprocal dispositions (§§ 2270, 2271 BGB), after the first death this is in principle possible only if the will provides a power of amendment or the survivor disclaims what was left to them (§ 2271 (2) sentence 1 BGB).
A further development is the so-called Jastrow clause, under which the children who do not demand are given a legacy. Often it is meant to use the children’s allowances after the parent who dies first. According to the case law of the Federal Fiscal Court, this regularly does not succeed if the legacy falls due only on the death of the surviving spouse: the survivor cannot deduct it as an estate liability on the first death, and the children are taxed on it on the second death as an acquisition from the surviving parent (§ 6 (4) ErbStG), so that only the latter’s allowance is available to them (judgment of 11 October 2023, II R 34/20). Anyone who wants to use the allowance after the first parent needs a different structure, for example a legacy due immediately. The tax effects of each of these structures are the subject of separate questions; they belong in the hands of a tax adviser. Where the legal position is unclear, tax consequences should be secured before implementation by a binding ruling (verbindliche Auskunft) from the tax office (§ 89 (2) AO).
For couples who have an older will, a simple order of review follows: first read the wording of the clause, then clarify whether residence, nationality or assets have changed since it was made, and only then decide whether an adjustment is necessary. As long as both spouses are alive and have testamentary capacity, a joint will can regularly still be changed jointly or replaced by a notarial deed. After the first death the survivor’s room for manoeuvre is considerably smaller.
When the Foreign Connection Affects the Clause
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| Situation | Question to examine |
|---|---|
| Couple moves abroad after making the will | Which succession law applies on death? |
| One spouse has a different nationality | Is a choice of law possible and desired? |
| Property or account abroad | Does the same law governing succession apply to that part, or does the estate split? |
| Child lives abroad | Which law governs the demand, where is it enforced? |
| Will made abroad | Valid in form and permissible in substance? |
First: Which Succession Law Applies?
For courts in Germany and the other Member States participating in the Regulation, that is excluding Denmark and Ireland, the Succession Regulation determines the applicable law, even if this is the law of a third state (Art. 20 EuErbVO). Under Art. 21 (1) EuErbVO, the law of the state in which the deceased had their habitual residence at the time of death applies in principle; under Art. 22 EuErbVO the law of nationality can be chosen. The law determined under these rules also governs compulsory portion rights and other restrictions on freedom of testation (Art. 23 (2) EuErbVO). For the penalty clause this means: whether and in what form a compulsory portion exists is decided by the law governing succession at the time of death. Admissibility, substantive validity and interpretation of the disposition, by contrast, follow the law that would have applied to the succession at the time of making (Art. 24 to 26 EuErbVO). After emigration, the two laws can diverge.
The choice of law must be declared expressly in a disposition upon death or follow clearly from it. Details on choosing German law can be found in the article Will When Living Abroad. Emigrating without a choice of law can lead to a foreign law applying. Some legal systems do not know the German compulsory portion but a participation in the estate itself. A clause tailored to the German monetary-claim model may then come to nothing. What the foreign law says in detail is clarified by a local adviser.
Second: Is the Joint Will Permissible?
The clause usually appears in a joint will. Some legal systems do not permit joint wills or treat binding effect differently. What is decisive is not the law at death but the law that would have applied to the succession at the time of making (Art. 24 (1), Art. 25 EuErbVO). The Federal Court of Justice (Bundesgerichtshof) treated reciprocal dispositions that spouses had made in two separate deeds of identical content as an inheritance contract within the meaning of the Regulation (decision of 24 February 2021, IV ZB 33/20); for binding effect and validity, a choice of law under Art. 25 (3) EuErbVO was then decisive. Whether a joint will made in one deed is to be assessed under Art. 24 or Art. 25 EuErbVO has been left open by the Federal Court of Justice; the literature is not uniform. The decision also concerned a will made before 17 August 2015. The structure is safe if both spouses expressly choose their home law in the will (Art. 22 EuErbVO) and expressly extend this choice also to admissibility, validity and binding effect (Art. 24 (2), Art. 25 (3) EuErbVO); both classifications then lead to the same law. A later emigration therefore does not without more remove the basis of a will that was valid when made. If the will was impermissible, however, the clause too can fall away. How a joint will is to be classified is covered by the article Berlin-Style Will with a Foreign Connection. Whether an inheritance contract is an alternative must be examined separately under Art. 25 EuErbVO, since it too is not permissible in every legal system, see Inheritance Contract Instead of a Will for International Assets.
Third: Ordre Public and the German Compulsory Portion
If foreign law is applied that does not know a needs-independent compulsory portion, German ordre public (public policy) can intervene. The Federal Court of Justice decided by judgment of 29 June 2022 (IV ZR 110/21): if the deceased had chosen English law, its application can, under Art. 35 EuErbVO, be manifestly incompatible with German public policy if a child receives no needs-independent compulsory portion and the facts have a sufficiently strong domestic connection. In that case German compulsory portion law was applied and the claim to information under § 2314 BGB was confirmed.
In practice this means two things. First: a choice of law in favour of a law without a compulsory portion does not reliably protect the estate from compulsory portion claims by German children. Second: the compulsory portion penalty clause can then regain importance, because the demand remains possible under German law. Whether the conditions are met in the individual case depends on the domestic connection and cannot be answered schematically. The background to the compulsory portion with foreign assets is described in the article Compulsory Portion Law and Foreign Assets.
Fourth: Split of the Estate and Foreign Assets
The law governing succession in principle covers the entire estate. Nevertheless an actual split can arise if a state outside the Regulation treats assets in its territory under its own law. The penalty clause then applies only to the part of the estate subject to German law. If a child demands the compulsory portion only in respect of the foreign assets, it is open whether this triggers the clause; the wording should address this. It is also practically relevant that the compulsory portion is a monetary claim against the heir. Whether enforcement against assets abroad is possible depends on whether a German title is recognised and enforced there.
Fifth: Change of Residence Between the Two Deaths
The law governing succession is changeable. It is determined at the time of death in each case. If the surviving spouse moves abroad after the first death, a different law can apply to the second death than to the first. The clause, which was subject to German law on the first death, takes effect on the second death under the law then applicable. A choice of law under Art. 22 EuErbVO can reduce this uncertainty; each spouse can, however, choose only the law of a state of which they are a national. Its consequences are to be examined carefully, because after the death of the first-dying spouse they influence the survivor’s freedom of arrangement.
Alternatives and Supplements
The clause is only one of several possibilities for steering the compulsory portion on the first death:
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| Instrument | Effect | Limit with a foreign connection |
|---|---|---|
| Waiver of the compulsory portion (§ 2346 BGB) | The person waiving no longer has a compulsory portion claim | Notarial form; check separately the effect under a foreign law governing succession |
| Inheritance contract | Binding effect and waiver in one deed | Not every legal system recognises it |
| Deferral of the compulsory portion (§ 2331a BGB) | Postponement in case of undue hardship for the heir | On application in the individual case |
| Penalty clause with legacy (Jastrow) | Additional incentive | Tax questions, interpretation |
On waiver with an international connection see Waiver of the Compulsory Portion in an International Estate. The basics of the compulsory portion in a purely domestic case are explained in the article Children’s Compulsory Portion.
Time Limits at a Glance
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| Time limit | Provision | Note |
|---|---|---|
| Disclaiming the inheritance | § 1944 BGB: six weeks, six months with a foreign connection | Begins with knowledge; with a will, at the earliest with its announcement |
| Compulsory portion claim | §§ 195, 199 BGB: three years | Begins at the end of the year in which the claim arose and the entitled person learned of the succession and of the prejudicial disposition; applies under German law governing succession |
| Information | § 2314 BGB | Claim to information of the person entitled to a compulsory portion |
Six months instead of six weeks apply under § 1944 (3) BGB if the deceased had their last domicile only abroad or the heir is abroad when the period begins. Whether and how a disclaimer affects the compulsory portion and the clause is to be examined in the individual case.
Three Mistakes Laypeople Often Make
- Taking over the clause unchanged from a template. Without a clear definition of the demand, and without a rule for descendants and social assistance authorities, disputes and risks of interpretation arise.
- Not thinking about emigration. After the move, without a choice of law a different law may apply, and the clause no longer fits.
- Relying on a choice of law as compulsory portion protection. German ordre public can secure the compulsory portion despite a choice of law where the domestic connection is strong.
Conclusion
The compulsory portion penalty clause works reliably only if German succession law applies and the wording is carefully chosen. With a foreign connection four questions must be clarified in advance: which succession law applies, under which law is the joint will permissible, what influence does German ordre public have, and how does a change of the governing law between the two deaths take effect? A choice of law under Art. 22 EuErbVO, a formulation matched to the law governing succession and, where appropriate, a waiver of the compulsory portion are the usual building blocks. What foreign law orders in detail must be answered by a local adviser.
Frequently Asked Questions
Does my compulsory portion penalty clause continue to apply after a move abroad?
Not without more. Whether the disposition is valid and permissible is governed by the law at the time of making; whether a compulsory portion exists, by the law governing succession at the time of death. If foreign law then applies, the clause can be wholly or partly ineffective.
Does the clause prevent the compulsory portion?
No. The compulsory portion cannot be excluded by a clause. It attaches to the demand for it on the first death a consequence for the second death.
Does a request for information trigger the clause?
That depends on the wording. Courts have decided differently on different formulations. A clear rule in the will avoids the dispute.
Can I exclude the compulsory portion with a choice of law?
Not reliably. According to the case law of the Federal Court of Justice, with a strong domestic connection German ordre public can intervene and bring German compulsory portion law into application.
Must I adjust an existing clause?
After emigration, marriage to a foreign partner or the acquisition of foreign assets, the clause should be checked for validity and fit. A change after the first death is possible only to a limited extent.
Attorney Dr. Johannes Fiala and the law firm, with a focus on international inheritance law, tax law and asset protection in Munich, advise couples and heirs with a foreign connection on compulsory portion planning, from the choice of law through the wording of the penalty clause to waiver of the compulsory portion and inheritance contract. Dr. Fiala has published extensively on questions of emigration and asset protection. Contact the firm without obligation to discuss your individual situation in an initial consultation.
