Parents of a disabled child in Germany are frequently advised to draw up a so-called disabled person’s will (Behindertentestament) to prevent the social welfare authority from accessing, after their own death, the assets intended for the child. But what happens if the family itself lives abroad, plans to emigrate, or the disabled child has long had a residence of their own outside Germany? This raises a question that rarely features in the standard guides to the disabled person’s will: does this finely calibrated arrangement of restricted preliminary inheritance and executorship still work at all if German succession law does not ultimately apply? The answer is uncomfortable but important to know before a will is drafted: without special provision, the entire protective mechanism can fail completely.
The Basic Concept: How a Classic Disabled Person’s Will Works in Germany
The aim of a disabled person’s will is to allow a disabled child dependent on social benefits to receive a tangible advantage from the family’s assets beyond the parents’ deaths, without the social welfare or integration assistance authority being able to draw on those assets to cover its own expenditure. Under German law, this is typically achieved through a combination of three building blocks:
The disabled child is designated as a restricted preliminary heir (nicht befreiter Vorerbe, Sections 2100 et seq. of the German Civil Code, Bürgerliches Gesetzbuch, BGB), usually with a share noticeably above their statutory forced share (Pflichtteil). As a restricted preliminary heir, the child is subject to the disposal restrictions of Sections 2112 et seq. BGB and may not freely dispose of the substance of the estate – in essence, only the income from it is available to them. On the child’s death, the remaining assets pass to a subsequent heir (Nacherbe), usually siblings or a charitable organisation.
This structure is supplemented by ongoing executorship (Dauertestamentsvollstreckung, Sections 2197 et seq., in particular Section 2209 BGB): an executor administers the assets for the entire lifetime of the disabled child and decides, within the framework of the testamentary administration instructions, on distributions intended to benefit the child in addition to state benefits. The decisive provision is Section 2214 BGB: personal creditors of the heir – which, once a claim has been assigned to them, includes social welfare authorities – cannot enforce claims against estate assets that are subject to the executor’s administration.
The Federal Court of Justice (Bundesgerichtshof, BGH) has consistently confirmed this arrangement as permissible and not contrary to public policy in its established case law – fundamentally in its judgment of 20 October 1993 (IV ZR 231/92) and again in its judgment of 19 January 2011 (IV ZR 7/10), in which the BGH described this line of case law as settled since 1990: parents are entitled to give greater weight to their morally recognised concern for their disabled child’s welfare than to the fiscal interest of the social welfare authority in the fullest possible recourse. In addition, Section 102 of Book XII of the Social Code (Sozialgesetzbuch, SGB XII) already limits the authority’s claim for reimbursement of costs against heirs to a period of ten years before the death and, in amount, to sums exceeding three times the basic amount under Section 85(1) SGB XII. Two further restrictions round off this protection: under Section 102(4) SGB XII, the claim already becomes time-barred three years after the death of the person entitled to benefits, and under Section 102(3) no. 3 SGB XII, the heir must be released from the reimbursement obligation to the extent that enforcing it would, given the circumstances of the individual case, amount to particular hardship – although case law applies strict requirements to this hardship exception.
Why This Arrangement Presupposes Purely German Law
What reads, in these few paragraphs, like a compact formula is in truth a tightly interlocking interplay of specifically German legal institutions: the preliminary and subsequent inheritance (Vor- und Nacherbschaft) as a special form of successive inheritance over time, ongoing executorship with the enforcement protection anchored in Section 2214 BGB, the forced heir’s right of election under Section 2306 BGB between a restricted position as heir and the forced share, and the limited reimbursement obligation under Section 102 SGB XII. Each of these elements presupposes that German substantive succession law – the so-called law applicable to succession (Erbstatut) – applies to the estate in the first place. Once a foreign element enters the picture, that can no longer be taken for granted.
The Foreign Element: When German Succession Law No Longer Applies Automatically
For succession cases connected with other EU states, the EU Succession Regulation (Regulation (EU) No 650/2012, EuErbVO) determines which law applies. Under the basic rule of Article 21(1) EuErbVO, what matters is not nationality but the habitual residence of the deceased – that is, of the parent who made the will – at the time of death. Where the disabled child themselves lives is, at this initial conflict-of-laws stage, irrelevant; what counts is the centre of life of the person making the will. How this basic rule works in detail, and which exceptions apply for third states, is examined in depth in our article on German succession law for those living abroad.
If the parent making the will permanently relocates their habitual residence abroad – for instance as part of the family’s joint emigration – the resulting estate is, without any further action, in principle governed by the law of the new state of residence. Under Article 23(2) EuErbVO, this includes, among other matters, forced heirship rights (Article 23(2)(h) EuErbVO) and the powers of executors to administer and realise the estate (Article 23(2)(f) EuErbVO) – precisely the building blocks on which the disabled person’s will is built. Whether and how a preliminary and subsequent inheritance can be established at all is likewise a matter for the law applicable to succession: it concerns who becomes an heir, when, and to what extent, and thus goes to the heart of what the applicable law determines.
The Real Problem: Many Legal Systems Have No Equivalent to the Preliminary/Subsequent Inheritance
This is where the real difficulty for a disabled person’s will with a foreign element lies: the preliminary and subsequent inheritance under Sections 2100 et seq. BGB is a distinctive feature of the German-speaking legal family. Many other legal systems structure a staggered succession of assets over time in a fundamentally different way, or do not recognise such an institution in this form at all.
Classic common law jurisdictions such as the United States, the United Kingdom, or Australia have no institution of succession law equivalent to the German preliminary and subsequent inheritance. Instead, they work with the trust, a fundamentally differently constructed institution of property and fiduciary law – in the United States, specifically for disabled family members, in the form of the so-called Special Needs Trust under 42 U.S.C. § 1396p(d)(4)(A), which is designed for a similar purpose to the German disabled person’s will but is constructed completely differently in terms of both social welfare law and trust law. One structural difference matters here: Section 1396p(d)(4)(A) specifically concerns the so-called “self-settled” Special Needs Trust, which is established using the disabled person’s own assets and, in return, provides for a statutory repayment obligation (payback) to the state on death. The German disabled person’s will, by contrast, typically operates with third-party assets belonging to the parents, without any such repayment obligation – closer to the US “third-party special needs trust”, which falls outside Section 1396p(d)(4)(A) and is not subject to the payback mechanism. The analogy between the German and US models therefore lies with this third type of trust rather than the one governed by Section 1396p(d)(4)(A). German case law recognises that a sufficient degree of legal similarity can exist between a common law trust created by will and the German preliminary and subsequent inheritance – but this recognition presupposes that German law applies to the estate and that a will drafted under foreign law is interpreted by German standards. The reverse situation, which is typically what is at stake in a disabled person’s will with a foreign element, is far less certain: where foreign law forms the law applicable to succession, there is no guarantee that a foreign court or a foreign bank will implement a restricted preliminary inheritance combined with ongoing executorship, drafted along German lines, in the way the German drafters intended. Continental European legal systems outside the German-speaking world rarely offer a direct equivalent either; more common there are models such as usufruct (Nießbrauch), which split the use and the substance of assets as rights in rem, without replicating the staggered change of heirs found in the German preliminary and subsequent inheritance.
The following – necessarily simplified – overview shows these fundamentally different approaches:
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| Legal family | Comparable institution | Key difference from the German preliminary/subsequent inheritance |
|---|---|---|
| Germany (and, in broad outline, Austria and Switzerland) | Preliminary and subsequent inheritance, Sections 2100 et seq. BGB, combined with ongoing executorship | A distinct institution of succession law with statutory enforcement protection under Section 2214 BGB |
| Common law jurisdictions (including the US, the UK, Australia) | Trust, in particular the “special needs trust” or “disabled person’s trust” | An institution of fiduciary law outside succession law, with its own rules on offsetting against social benefits |
| Numerous continental European states outside the German-speaking world | Usufruct or comparable rights of use in rem | Splits use and substance; no staggered change of heirs over time |
This overview does not replace an examination of the law actually applicable in an individual case, but it does make clear that a disabled person’s will copied word-for-word from a German template will not automatically produce the same protective effect under a foreign legal system.
The Practical Consequence: Choosing German Law
This is precisely where an option expressly provided for by the EuErbVO takes on particular importance: the choice of law under Article 22 EuErbVO. Under this provision, any person may, by express declaration in a disposition of property upon death, choose the law of the state whose nationality they hold at the time of making the choice or at the time of death. A German national permanently resident abroad can therefore stipulate in their will that German succession law is to continue to govern their estate – regardless of where their habitual residence was located at the time of death.
For an ordinary will, such a choice of law is one of several sensible drafting options, the absence of which leads to a different but still generally workable outcome. For a disabled person’s will, the position is different: because the entire protective mechanism – restricted preliminary inheritance, ongoing executorship, the right of election under Section 2306 BGB, the liability limit under Section 102 SGB XII – is built on specifically German rules, choosing German law here is not merely a precaution but the essential prerequisite for the chosen arrangement to take effect at all in the form intended. If no choice of law is made and foreign law applies instead, a preliminary and subsequent inheritance drafted along German lines can, in the worst case, remain wholly ineffective, or be reinterpreted by a foreign court as an institution that does not provide the protection against third-party access originally intended.
Limits of the Choice of Law: What It Secures – and What It Does Not
The choice of law under Article 22 EuErbVO secures the succession-law level: it ensures that German substantive succession law governs the preliminary and subsequent inheritance, the executorship, and the associated disposal restrictions. Two points, however, remain unaffected by it and should be considered when advising on such a case.
First, the choice of law affects only the law applicable to succession, not social welfare law. Whether, and to what extent, a social welfare or integration assistance authority provides benefits at all – the very benefits against which the disabled person’s will is directed – depends on the state in which the disabled child actually lives and receives benefits. If the child lives permanently abroad and receives social benefits there under local law, the question of which assets are taken into account against those benefits is governed by the social welfare law of that state – a German disabled person’s will cannot override those means-testing rules, even if it is validly structured under German succession law. In such a case, the arrangement must additionally be coordinated with the social welfare law of the state where the child actually resides.
Second, even where the choice of law is valid, practical implementation abroad still needs to be addressed, for example where assets or accounts are held abroad. A foreign bank or land registry may have no first-hand familiarity with the concept of a restricted preliminary inheritance, even where German law is formally applicable. Careful documentation of the testamentary provisions – where necessary also in a foreign language – generally helps here, together with, within the EU, the European Certificate of Succession as a document of proof recognised across borders.
The Connection with Forced Heirship
The disabled person’s will stands in a close relationship with the law on forced heirship: the share allocated to the disabled preliminary heir must be calculated so that renouncing the restricted preliminary inheritance in favour of the forced share under Section 2306 BGB remains economically unattractive, since the person entitled to a forced share has this right of election regardless of the size of the share allotted to them. This finely calibrated relationship between the preliminary heir’s share and the forced-share quota in particular presupposes that German forced heirship law under Section 2303 BGB applies at all – and, where a foreign element is present, this again raises the same choice-of-law question. How forced-share claims can generally be enforced against assets located abroad, which legal systems even recognise an institution comparable to the German forced share, and what role the public policy (ordre public) reservation plays in this context, is examined in detail in our article on forced heirship and assets located abroad.
An Illustrative Example
The following example is entirely fictional and serves illustrative purposes only; it does not describe any real case or real person. A married couple with an adult son who is permanently dependent on integration assistance draws up a classic disabled person’s will in Germany: the son is designated as restricted preliminary heir with a share just above his forced share, his sister as subsequent heir, and an executor is to administer the assets for the son’s lifetime. Years later, the couple permanently relocate their habitual residence to Portugal, while the son continues to live in Germany and receives care there. Without an express choice of law in the will, Portuguese succession law would in principle apply on the death of the longer-surviving parent – a legal system that does not recognise an arrangement equivalent to the German preliminary and subsequent inheritance. The carefully planned protective structure would therefore fail, even though the son himself never changed his place of residence. A choice-of-law clause in favour of German law, included in good time, could have avoided this outcome.
When Is Legal Advice Worthwhile?
For families with a disabled family member and a foreign connection, legal review is particularly worthwhile in the following situations: where a parent already lives abroad or is planning to emigrate and an existing or planned disabled person’s will does not yet contain a choice-of-law clause; where the disabled child themselves lives abroad or is due to move there, so that foreign rather than German social welfare law may apply; where assets exist in several countries whose legal systems treat the preliminary and subsequent inheritance or executorship differently; and where a disabled person’s will drawn up years earlier has not been reviewed following a subsequent move abroad. In all these cases, it is often a single, unassuming clause that determines whether the intended protection actually takes effect.
Conclusion: A Foreign Element Calls for a Deliberate Choice of German Law
The classic disabled person’s will, combining a restricted preliminary inheritance with ongoing executorship, is an instrument recognised by the Federal Court of Justice and well established in Germany – but one closely tied to specifically German legal institutions. As soon as habitual residence abroad enters the picture, German law no longer automatically governs the estate under the EU Succession Regulation. Because many foreign legal systems – particularly in the common law world, but also across much of continental Europe outside the German-speaking countries – do not recognise an arrangement equivalent to the German preliminary and subsequent inheritance, the intended protection against the social welfare authority’s recourse can fail entirely without an express choice of German law under Article 22 EuErbVO. Such a choice of law does not replace the need to coordinate with the social welfare law actually applicable at the disabled family member’s place of residence, but it forms the indispensable legal foundation for the familiar German arrangement to take effect at all.
Fiala law firm has published extensively on international succession law and asset protection and helps clients structure a disabled person’s will so that, even where the family has a foreign connection, the intended protection against the social welfare authority’s recourse is genuinely preserved – from the choice-of-law clause through to coordination with foreign social welfare and succession law. Feel free to contact the firm without obligation to discuss your individual situation in an initial consultation.
