Anyone who wants to disclaim an inheritance has little time under German law. Where a disclaimer of inheritance (Erbausschlagung) has an international connection, the period is extended under certain conditions from six weeks to six months. Which period applies in the individual case, when it begins, where the declaration can be made and what form it must take often decide whether heirs have to answer for the debts of an unwanted estate. Emigrants and heirs living abroad face additional hurdles: certification abroad, postal delivery times, different courts and the question of whether German succession law applies at all. This article explains the legal position (as of September 2026) and shows where deadlines are lost in practice.
Preliminary Question: Does German Succession Law Apply at All?
The periods under Section 1944 BGB (German Civil Code, Bürgerliches Gesetzbuch) only apply if the succession is governed by German succession law. Since 17 August 2015, the applicable succession law has been determined by the European Succession Regulation (EuErbVO). Under Article 21 EuErbVO, what generally matters is the deceased’s habitual residence at the time of death, unless the deceased chose the law of their nationality under Article 22 EuErbVO. Under Article 23 (2) (e) EuErbVO, the conditions for accepting and disclaiming an inheritance, including the period, are governed by this law applicable to the succession (Erbstatut).
If, for example, a German deceased last had their habitual residence in Spain and had made no choice of law, the disclaimer is in principle also governed by the law there, whose periods may differ considerably. An adviser admitted in the state concerned should be consulted on this. How the EuErbVO determines the applicable law is explained in the article on international succession law when emigrating. The following explanations concern successions under German law.
The Basic Rule: Six Weeks from Knowledge
Under Section 1944 (1) BGB, the inheritance can only be disclaimed within six weeks. If the heir lets the period expire, they can no longer disclaim under Section 1943 BGB; the inheritance is deemed to have been accepted.
When the Period Begins
Under Section 1944 (2) sentence 1 BGB, the period begins at the time when the heir learns of the accrual of the inheritance (Anfall der Erbschaft) and the ground on which they have been called to inherit. The date of death itself is not decisive. According to the case law of the Federal Court of Justice (Bundesgerichtshof, BGH), knowledge requires reliable information about the relevant circumstances on the basis of which action can be expected; an understandable mistake of law may also preclude knowledge.
If the heir has been called to inherit by a disposition of property upon death, the period does not begin, under Section 1944 (2) sentence 2 BGB, before this disposition has been announced by the probate court (Nachlassgericht). In practice, this is usually the receipt of the opening record together with the copy of the will. Under Section 1944 (2) sentence 3 BGB, the limitation provisions of Sections 206 and 210 BGB apply accordingly to the running of the period, for example in cases of force majeure or a lack of statutory representation.
Important: the period runs separately for each heir. If an heir disclaims, the inheritance passes to those next in line, for example the children of the person disclaiming. For them, a separate period begins as soon as they learn that the inheritance has passed to them. In families with relatives in different countries, this creates chains of disclaimers, each with its own period.
Six Months: The Two Cases of Section 1944 (3) BGB
Under Section 1944 (3) BGB, the period is six months if the deceased had their last residence only abroad or if the heir is staying abroad when the period begins. It is sufficient if either of the two alternatives applies.
Deceased’s Last Residence Only Abroad
The first alternative is linked to the deceased’s residence (Wohnsitz), not to their habitual residence within the meaning of the EuErbVO and not to their nationality. The word “only” is decisive: if the deceased had a residence in Germany in addition to a home abroad, for example because, as a retiree, they commuted between Germany and Portugal, this alternative does not apply. The period then remains six weeks, unless the heir is staying abroad when the period begins.
Heir Staying Abroad When the Period Begins
For the heir, the law does not require a residence but only a stay (Aufenthalt) abroad, and specifically at the time the period begins. Later conduct is irrelevant to the length of the period: anyone who is in Germany when they acquire knowledge and travels abroad a week later does not receive an extension. Conversely, the period is not shortened if an heir who was abroad when the period began returns to Germany shortly afterwards.
What “stay” means was clarified by the Federal Court of Justice in its order of 16 January 2019 (IV ZB 20/18 and IV ZB 21/18). The provision is intended to take account of communication problems in obtaining information. What is required is actual presence abroad for a certain duration. A planned day trip of a few hours to a neighbouring country, returning the same day, is in any event not sufficient. Exactly where the line lies, for instance whether an overnight stay or a weekend is sufficient, was left open by the BGH. Anyone who wishes to rely on the longer period should be able to prove their stay abroad at the time of knowledge, for example by travel documents or a certificate of registration abroad.
Minor Heirs: The Parents’ Position Is Decisive
For minor heirs, according to the BGH decision mentioned, knowledge and stay are determined not by reference to the child but to the statutory representatives. Where parents have joint custody, the period only begins once the second of the two parents has acquired knowledge. If even one of the two parents is staying abroad when the period begins, the six-month period applies.
Overview: Which Period Applies?
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| Scenario | Period under German law |
|---|---|
| Deceased and heir live in Germany | 6 weeks |
| Deceased had their last residence only abroad | 6 months |
| Deceased had a residence abroad and additionally in Germany, heir in Germany | 6 weeks |
| Heir is staying abroad when the period begins (e.g. residence there or longer stay) | 6 months |
| Heir is only on a day trip abroad when the period begins | 6 weeks (BGH, IV ZB 20/18) |
| Minor heir, one parent abroad when the period begins | 6 months |
| Succession governed by foreign succession law | Period under the foreign law, involve a local adviser |
The Form: Publicly Certified and Received by the Probate Court in Time
Under Section 1945 (1) BGB, the inheritance is disclaimed by declaration to the probate court, either recorded by the probate court or in publicly certified form (öffentlich beglaubigte Form). A simple letter, an e-mail or a fax is not sufficient. A disclaimer subject to a condition is invalid under Section 1947 BGB, and a restriction to part of the inheritance is excluded under Section 1950 BGB.
Anyone who uses an authorised representative needs a publicly certified power of attorney under Section 1945 (3) BGB. It must be attached to the declaration or submitted subsequently within the disclaimer period. An existing, publicly certified lasting power of attorney (Vorsorgevollmacht) can be helpful here, provided it covers declarations under succession law; guidance on this can be found in the article on the lasting power of attorney with a residence abroad.
Certification Abroad: Consulate or Foreign Notary
Anyone living abroad does not have to travel to Germany. Under Section 10 of the Consular Act (Konsulargesetz), German consular officers can certify signatures; these certifications are equivalent to those of a domestic notary. The missions abroad generally require personal attendance with a valid identity document and charge fees. For minor heirs, both parents with custody should sign.
The consulate does not, however, receive the disclaimer with effect for the probate court. It only certifies the signature. The declaration only becomes effective once it is received by the competent probate court.
Alternatively, certification by a foreign notary may be considered. Whether the German court then requires an apostille under the Hague Convention of 1961 or legalisation depends on the issuing state. For public documents from EU Member States, Article 74 EuErbVO provides for exemption from legalisation within the scope of the Regulation; bilateral exemption agreements exist with individual states. For third states, an apostille and possibly a translation should generally be expected, which takes time.
Receipt within the Period: The Underestimated Bottleneck
What is decisive is that the certified original is received by the probate court before the period expires. International postal delivery times of several weeks are not unusual. Sending by registered post with proof of delivery or by courier with tracking provides proof. A copy sent in advance by fax or e-mail does not replace the original.
Which Court Accepts the Declaration?
The German Probate Court
In principle, the competent court is the probate court that has jurisdiction over the estate as a whole. Under Section 343 (1) FamFG (Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction), jurisdiction lies primarily with the court in whose district the deceased had their habitual residence at the time of death; if this was not in Germany, the court of their last habitual residence in Germany has jurisdiction (Section 343 (2) FamFG); if there was no such residence either, the Local Court (Amtsgericht) Schöneberg in Berlin has jurisdiction if the deceased was a German national or estate assets are located in Germany (Section 343 (3) FamFG). Details are dealt with in the article on the jurisdiction of the probate court with a residence abroad.
In addition, under Section 344 (7) FamFG, the probate court in whose district the person making the declaration has their habitual residence also has jurisdiction. This applies to the disclaimer as well as to the avoidance of the acceptance, of the disclaimer or of the failure to observe the period. Anyone living in Germany can therefore make the declaration at the court where they live; that court forwards it.
Declaration before the Court of the State of Residence: Article 13 EuErbVO
For heirs with their habitual residence in another EU Member State (with the exception of Denmark and Ireland, which are not bound by the EuErbVO), Article 13 EuErbVO opens up an additional option: they can also declare the disclaimer before the courts of the Member State in which they have their habitual residence, if the law of that state provides for such a declaration before a court. Conversely, Section 31 IntErbRVG (International Succession Procedure Act) provides for persons with their habitual residence in Germany that the probate court at their place of residence accepts such declarations, even if the succession is otherwise being administered in another Member State.
As regards form, Article 28 EuErbVO provides that a declaration of disclaimer is valid if it complies either with the formal requirements of the law applicable to the succession or with those of the state in which the person making the declaration has their habitual residence. By judgment of 2 June 2022 (C-617/20), the European Court of Justice held that a disclaimer made before the court of the state of residence is formally valid if the formal requirements applicable there have been complied with.
As long as the German probate court knows nothing of such a disclaimer, it may, for example, issue an incorrect certificate of inheritance (Erbschein). It should therefore be informed promptly with a certified copy. Article 13 EuErbVO does not apply to heirs in third states such as Switzerland, the United Kingdom or the USA, nor to heirs in Denmark and Ireland; they must submit the declaration to the German probate court.
Scission of the Estate: One Succession, Several Legal Systems
If parts of an estate are subject to different legal systems, for example because overriding international treaties link real estate to the law of the place where it is located or because a third state applies its own law to real estate located there, this is referred to as scission of the estate (Nachlassspaltung). For each part of the estate, it must then be examined separately which periods and forms apply and whether separate declarations are required abroad. The prohibition of partial disclaimer under Section 1950 BGB concerns the part of the estate subject to German law; for the foreign part, a local adviser must be involved. How statutory succession and the law applicable to the succession interact for emigrants is described in the article on statutory succession when emigrating.
Over-Indebted Estate Abroad: Making Sensible Use of the Period
The most common reason for a disclaimer is an over-indebted estate. Where there is an international connection, accounts with foreign banks, encumbered real estate or tax debts abroad are difficult to assess from a distance, and banks often require proof of inheritance before giving information. Even six months can become tight in this way. A structured approach makes sense:
- Record in writing when you acquired knowledge (date of the call, the e-mail, receipt of the court letter).
- Calculate the end of the period and deduct a buffer for certification and dispatch.
- Draw up an overview of assets: accounts, securities accounts, real estate, insurance policies, liabilities, guarantees and tax debts in each state concerned.
- Request information from banks, land registries and tax authorities, to the extent this is possible without an act of acceptance.
- Do not take any actions that could be interpreted as acceptance, such as selling estate assets or closing accounts for your own purposes.
If it is not clear by the end of the period whether the estate is over-indebted, then besides disclaiming, acceptance followed by a limitation of liability through estate administration (Nachlassverwaltung) or estate insolvency proceedings under Section 1975 BGB may also be considered. Where German law governs the succession and there are assets abroad, however, it must be examined whether these instruments are recognised there.
It should also be borne in mind that a disclaimer as a rule also costs the compulsory portion (Pflichtteil). An exception applies, among other things, under Section 2306 BGB if the heir is burdened by restrictions or encumbrances. Which claims exist in relation to foreign assets is explained in the article on compulsory portion rights over foreign assets. If a settlement payment is made in return for a disclaimer, it is subject to inheritance tax under Section 3 (2) No. 4 ErbStG (Inheritance and Gift Tax Act); on the question of double taxation, see the article on inheritance tax and double taxation treaties.
Tactical disclaimers are risky: in the BGH case of 2019, a chain of disclaimers was intended to circumvent the will; the disclaimer on behalf of the minor child was late and therefore invalid.
Period Missed: Avoidance of the Acceptance or of the Failure to Disclaim
Once the period has expired, only avoidance (Anfechtung) remains. Under Section 1956 BGB, the failure to observe the disclaimer period can be avoided in the same way as the acceptance. Under Section 1957 (1) BGB, the avoidance has the effect of a disclaimer. Under Section 1955 BGB, it must be declared to the probate court in the form required by Section 1945 BGB.
A ground for avoidance is required, typically a mistake. According to case law, this may, for example, be the case where the heir let the period expire because they were mistaken about its existence, its running or the legal consequences of its expiry. The mistake must, however, have been causal; the avoidance failed on this ground in the BGH case mentioned because a timely disclaimer would also have required the approval of the family court and it was not certain that this would have been granted.
Mistake about Over-Indebtedness: Value or Composition of the Estate?
It frequently only emerges after the period has expired that the estate looks different than expected. Whether this entitles the heir to avoid depends on what the mistake relates to:
- Mistake about value: anyone who has merely misjudged the value of the estate assets and debts known to them, for example by overestimating the sale proceeds of a property or setting the costs of clearing a flat too high, is generally subject to an irrelevant mistake as to motive. They therefore cannot avoid the acceptance or the disclaimer.
- Mistake about characteristics regarded as essential in business: a relevant mistake about characteristics (Eigenschaftsirrtum) under Section 119 (2) BGB may be considered where the heir was mistaken about the composition of the estate, that is, about the existence of assets and liabilities. The Federal Court of Justice has held that the acceptance of an inheritance may be avoidable on the ground of a mistake about a characteristic of the estate regarded as essential in business where the estate is encumbered with substantial liabilities whose existence is unclear (BGH, judgment of 8 February 1989, IVa ZR 98/87, BGHZ 106, 359). In the case decided, the heir had not known of a legacy. Accordingly, a mistake about the existence of particular, specific liabilities unknown to the heir may be relevant, for example a guarantee or a tax debt of the deceased abroad.
Anyone who disclaims or accepts without precise knowledge of the estate cannot later rely on a mistake. The Higher Regional Court (Oberlandesgericht) of Düsseldorf rejected the avoidance of a disclaimer that was based on the mere assumption that high clearance costs would consume the estate; a decision taken on a speculative, deliberately unverified basis does not give rise to a relevant mistake if the estate later turns out to have value (order of 19 December 2018, I-3 Wx 140/18). For heirs with an international connection, this means that the overview of assets from the previous section serves not only the decision itself but also records the composition of the estate on which you based your decision.
Conversely, the same standards apply to the avoidance of a disclaimer; under Section 1957 (1) BGB, such avoidance is deemed to be an acceptance.
Under Section 1954 (1) BGB, the period for avoidance is likewise six weeks from knowledge of the ground for avoidance and, under Section 1954 (3) BGB, six months if the deceased had their last residence only abroad or the person avoiding is staying abroad when the period begins. After 30 years, avoidance is excluded under Section 1954 (4) BGB.
Minor Heirs: Approval of the Family Court
If parents disclaim on behalf of a minor child, they generally require the approval of the family court under Section 1643 (1) BGB in conjunction with Section 1851 No. 1 BGB (legal position since the reform of the law on guardianship and custodianship with effect from 1 January 2023). Under Section 1643 (3) BGB, no approval is required if the inheritance only passes to the child as a result of the disclaimer by a parent who represents the child alone or jointly with the other parent, unless that parent was called to inherit alongside the child.
For families abroad, it must additionally be clarified which court has jurisdiction for the approval and whether a foreign decision will be recognised in Germany. Since 1 January 2023, there has been an express rule on the running of the period during the approval proceedings: under Section 1644 (3) sentence 1 BGB in conjunction with Section 1858 (3) BGB, the effectiveness of a disclaimer declared to the probate court without prior approval depends on subsequent approval; it becomes effective when the approval becomes final, and the disclaimer period is suspended (Hemmung) during the approval proceedings. Parents should therefore submit the declaration of disclaimer to the probate court within the period and apply to the family court for approval without delay.
Typical Mistakes in Practice
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| Mistake | Consequence | Remedy |
|---|---|---|
| Period calculated from the date of death instead of from knowledge | Unnecessary time pressure or misjudgement | Document the time of knowledge |
| Six months assumed although the deceased still had a residence in Germany | Disclaimer late | Clarify the deceased’s residence situation in advance |
| Postal delivery time and apostille not planned for | Period missed | Allow a buffer of several weeks |
| German court not informed after disclaimer at the court of residence (Article 13 EuErbVO) | Incorrect certificate of inheritance, enquiries from creditors | Certified copy to the German probate court |
| Children next in line forgotten | Children become heirs to the over-indebted estate | Also disclaim on behalf of minors, check approval |
| Foreign law applicable to the succession overlooked | German period and form do not apply | Check the law applicable to the succession, involve a local adviser |
Conclusion
The six-month period under Section 1944 (3) BGB only applies if the deceased had their last residence exclusively abroad or if the heir or their statutory representative is staying abroad for a certain length of time when the period begins. The declaration must be publicly certified and must reach the probate court in time. The applicable succession law, any scission of the estate and the approval for minor children should be clarified at an early stage.
Frequently Asked Questions
How long is the disclaimer period if I live abroad?
If the heir is staying abroad when the period begins, the period is six months under Section 1944 (3) BGB, provided German succession law applies. What matters is the stay, not the residence.
Can I disclaim the inheritance at the German consulate?
The consulate certifies your signature. The disclaimer only becomes effective once it is received by the competent probate court; the consulate appointment alone does not meet the deadline.
Does a holiday abroad extend the period?
According to the BGH, a planned day trip to a neighbouring country is not sufficient. Whether a longer holiday is sufficient depends on the circumstances of the individual case.
I live in France. Can I disclaim before a French court?
Under Article 13 EuErbVO, heirs with their habitual residence in an EU Member State bound by the EuErbVO can declare the disclaimer before the courts there, provided the law of that state provides for this. Which body is competent there and which form applies should be clarified with a local adviser. You should then inform the German probate court.
What can I do if I have missed the period?
The failure to observe the period can be avoided under Section 1956 BGB, for example in the case of a relevant mistake about the period or its legal consequences, within six weeks or, where there is an international connection, within six months of learning of the ground for avoidance.
Attorney Dr. Johannes Fiala and the Munich-based firm, with a focus on international succession law, tax law and asset protection, advise clients on disclaiming inheritances with an international connection, from checking the deadline and certification abroad to coordination with foreign law and classification for inheritance tax purposes. Dr. Fiala has published extensively on emigration and asset protection. Please get in touch with the firm without obligation to discuss your individual situation in an initial consultation.
