In short: After the death of the testator, a contractual heir can reclaim from the recipient a gift made despite an inheritance contract (Erbvertrag) if the testator made it with the intention of impairing the heir (§ 2287 (1) German Civil Code, Bürgerliches Gesetzbuch, BGB). The claim is for surrender under the law of unjust enrichment and becomes time-barred three years after the death (§ 2287 (2) BGB). According to the Federal Court of Justice (Bundesgerichtshof, BGH), judgment of 8 July 2026 (IV ZR 256/25), a reserved but unexercised right of withdrawal does not exclude it from the outset.
Anyone who is appointed heir in an inheritance contract and finds after the testator’s death that the testator gave away substantial parts of his or her assets during his or her lifetime asks about recovering the gift. The law provides a separate claim for this: if the testator made a gift with the intention of impairing the contractual heir, the contractual heir can demand surrender from the recipient after the death (§ 2287 BGB). The claim is tied to narrow requirements and a short limitation period. This article explains the requirements, legal consequences, deadlines, typical mistakes and the special features where there is a foreign connection. The legal position is as of October 2026. It is written for readers abroad as well, for example German citizens living outside Germany, foreign heirs of persons with German assets or recipients of gifts living abroad.
Starting Point: Binding Effect of the Inheritance Contract, Freedom during Lifetime
An inheritance contract binds the testator. Dispositions that he or she has made in it as contractual dispositions cannot be changed unilaterally by a later will; a later disposition upon death is invalid to the extent that it would impair the right of the contractual heir (§ 2289 (1) sentence 2 BGB). How the inheritance contract differs from a will and which advantages and disadvantages it has for international assets is shown in the article Inheritance contract instead of a will for international assets.
The binding effect concerns only dispositions upon death, however. The right to dispose of one’s own assets during one’s lifetime remains unaffected under the basic rule (§ 2286 BGB). The testator may therefore sell, spend and, in principle, also give away. Without a corrective, he or she could let the inheritance contract run empty by passing his or her assets to third parties before death. It is precisely this gap that § 2287 BGB closes.
The Requirements of § 2287 BGB at a Glance
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| Requirement | Content | Typical point of dispute |
|---|---|---|
| Contractual binding effect | The claimant is appointed heir by inheritance contract (or by a disposition bound in a corresponding way) | Is the disposition really contractual, or only made unilaterally? |
| Gift | Gratuitous transfer, including a mixed gift or a gratuitous transfer that has the effect of a gift | Was consideration given, for example care? |
| Timing | The gift was made after the binding effect arose | Did the transfer precede the inheritance contract? |
| Intention to impair | The testator wanted to disadvantage the contractual heir | Did the testator have a lifetime interest of his or her own? |
| Succession | The claim arises only once the inheritance has devolved on the contractual heir | Did the contractual heir accept or disclaim? |
| Defendant | The recipient, not the estate | Who actually obtained the asset? |
Contractual Binding Effect
Protected is anyone who is provided for by a contractual disposition in an inheritance contract. The same need for protection exists in the case of a joint will, if the dispositions are reciprocal (wechselbezüglich) and have become binding on the surviving spouse; the case law applies § 2287 BGB there by analogy. A freely revocable individual will is not sufficient, because the testator can dispose differently at any time. For legatees, § 2288 BGB contains a separate provision.
Gift
Gifts within the meaning of § 516 BGB are covered. These also include mixed gifts, where a property is sold far below value, as well as gratuitous transfers that are equivalent to a gift by their purpose. Gifts made out of moral duty (Anstandsgeschenke) and transfers for which the testator received appropriate consideration generally do not give rise to the claim. If the testator was cared for for years, for instance, this can be the subject of a remuneration agreement or a lifetime interest of his or her own.
Intention to Impair and Lifetime Interest of the Testator
The core of most proceedings is the question whether the testator made the gift with the intention of impairing the contractual heir. The case law does not require that the disadvantage was the only motive. It suffices that the testator had no recognisable lifetime interest of his or her own in the gift. Such an interest can lie, for example, in providing for the testator himself or herself, in thanks for care or in securing a person close to him or her. It must be comprehensible and must demonstrably have borne the testator’s decision. The closer the gift is to the death and the more completely it hollows out the assets, the more this points to a deliberate circumvention. This is an assessment of all the circumstances, not a schematic test.
Legal Consequence: Surrender under the Law of Unjust Enrichment
The claim is for surrender of the gift “in accordance with the provisions on the surrender of unjust enrichment”. This is a reference to the legal consequences. If the gifted object no longer exists, compensation in value comes into question; the recipient may under certain circumstances rely on the loss of the enrichment, unless the stricter liability applies, for example because he or she knew of the intention to impair. Whether and to what extent this applies in the specific case must be examined in the individual case.
The Right of Withdrawal: Decision of the Federal Court of Justice of 8 July 2026
Many inheritance contracts contain a reservation of withdrawal (Rücktrittsvorbehalt, § 2293 BGB). Withdrawal requires a declaration that must be notarially recorded during the lifetime of the other contracting party (§ 2296 BGB). Recipients like to argue: if the testator could withdraw anyway, there was no expectation of inheriting worthy of protection.
By final judgment of 24 October 2025 (1 U 555/24 Erb), the Higher Regional Court of Nuremberg (Oberlandesgericht Nürnberg) had dismissed the action of a contractual heir in a case with an unconditional reservation of withdrawal agreed subsequently (in 2015, around 45 years after the inheritance contract was concluded). The Federal Court of Justice set this decision aside by judgment of 8 July 2026 (IV ZR 256/25) and remitted the case. The Senate decided (NJW 2026, 3018) that a right of withdrawal reserved in the inheritance contract but not exercised does not exclude the claim under § 2287 (1) BGB. As long as the testator has not withdrawn, the contractual heir may rely on his or her inheritance; otherwise the testator could hollow out the contract by gifts. The court of appeal must now examine whether the further requirements of the claim are met.
Two points are important here. First, the decision is no guarantee for the contractual heir, because the remaining requirements, above all the intention to impair, still have to be examined. Second, it does not change the fact that a declared withdrawal removes the binding effect. A testator who wants to secure his or her freedom of disposition must therefore bring about the withdrawal or the rescission of the inheritance contract formally (§§ 2290, 2296 BGB) and cannot rely on a mere reservation.
Who May Demand What?
The claim belongs to the contractual heir, not to the person entitled to a compulsory portion as such. It arises only after the inheritance has devolved on the contractual heir; it does not exist during the testator’s lifetime. It is directed against the recipient, not against the estate, the community of heirs (Erbengemeinschaft) or the co-heirs. If there are several contractual heirs, the claim, according to the case law, belongs to each only to the extent that corresponds to his or her share; the claim does not belong to the estate (BGH, judgment of 10 March 2021, IV ZR 8/20). Anyone who disclaims loses the legal position of contractual heir and with it the claim.
The claim under § 2287 BGB exists alongside the supplementary compulsory portion (Pflichtteilsergänzung). The two are different claims: the supplementary compulsory portion protects the minimum participation of those entitled to a compulsory portion and is directed against the heir for money (against the recipient only subsidiarily under § 2329 BGB), whereas the contractual heir’s claim aims at surrender of the gift. For an overview of the compulsory portion see Compulsory portion and inheritance for children.
Limitation: Three Years from the Death
The claim under § 2287 BGB becomes time-barred three years after the death.
The limitation period is three years (§ 195 BGB) and begins with the death (§ 2287 (2) BGB), to the day, not only at the end of the year. This matters: unlike with many claims, it runs irrespective of when the contractual heir learns of the gift. Anyone who discovers the gift only after two and a half years has only a few months left. Limitation can be suspended by serious negotiations or court proceedings; a mere demand letter is not sufficient. Anyone who wants to preserve his or her claims should have it checked early whether and when suspension or an action is required.
Evidence and Information: How Contractual Heirs Trace Gifts
The contractual heir must set out the requirements and, in case of dispute, prove them. He or she can rely for this on the testator’s documents: bank statements, savings books, transfer receipts, notarial contracts, land register extracts and correspondence with banks. As heir, he or she regularly has rights to information against the testator’s banks. Inspection of the land register requires a legitimate interest. A general statutory right to information against the recipient does not exist in every case; how far claims to information extend depends on the individual case. That is precisely why the securing of evidence should begin early: witnesses on the testator’s state of health and family circumstances, doctors, carers and neighbours, records on the asset situation at the time of the gift.
Structuring: What Testators and Contractual Heirs Can Agree
Testators and contractual heirs can regulate the room for manoeuvre through reservations, consent or rescission of the inheritance contract.
A testator who wants to retain room for manoeuvre has several options, which must be coordinated with the contracting partner and the contractual heirs:
- Reservation of withdrawal: it creates freedom only if it is effectively used (§§ 2293, 2296 BGB).
- Reservation of amendment (Änderungsvorbehalt): the inheritance contract can expressly permit certain changes to the succession. To the extent that such a reservation reaches, there is no protected expectation of inheriting; in this it differs, according to the decision of 8 July 2026, from a mere reservation of withdrawal. Its scope is to be determined by interpreting the clause.
- Consent of the contractual heir: if the contractual heir consents to the gift, this can exclude the claim. The consent must be notarially recorded because it comes close to a waiver of inheritance (Erbverzicht) (§ 2348 BGB by analogy; BGH, judgment of 12 July 1989, IVa ZR 174/88). Merely oral or privately written consent as a rule does not exclude the claim.
- Rescission or amendment of the inheritance contract: possible by contract (§ 2290 BGB), in notarial form.
- Consideration and documentation: care services, promises of support and the testator’s own interest should be recorded in writing.
Tax Consequences of the Return
Gift tax arises for the recipient to the extent that no allowances apply. If the gift later has to be surrendered on the basis of a right of recovery, the tax lapses retroactively under § 29 (1) no. 1 Inheritance Tax Act (Erbschaftsteuergesetz, ErbStG), to the extent that surrender was required. This applies only if the right of recovery was already agreed in the gift contract or arises from the law. A right of recovery agreed only subsequently is not recognised by the tax office: the tax on the gift remains, and the return counts as a new gift. If, for example, a child returns a gift to the parents, the child pays tax on it in tax class II with an allowance of only 20,000 euros, calculated on the value at the time of the return. Rights of recovery therefore belong in the gift contract from the start. What the contractual heir obtains from the recipient counts in his or her hands as conferred by the testator (§ 3 (2) no. 7 ErbStG); the tax arises when the claim is asserted (§ 9 (1) no. 1 letter j ErbStG). The reporting duties under § 30 ErbStG must still be observed.
Before you implement a recovery or an arrangement for tax purposes, open questions should be clarified by a binding ruling from the tax office (verbindliche Auskunft, § 89 (2) Fiscal Code, Abgabenordnung, AO), in case of a foreign connection possibly also by the corresponding ruling in the other state. It binds the tax office only for the specific facts and is subject to a fee (§ 89 (3) to (7) AO).
Foreign Connection: Inheritance Contract, Recipient and Assets Abroad
If the testator had his or her habitual abode abroad, it must first be clarified which law applies to the succession upon death. From the point of view of German courts, the EU Succession Regulation (Erbrechtsverordnung, EuErbVO) decides this, even if the testator lived in a third state (Art. 20 EuErbVO); the general connecting factor is the last habitual residence (Art. 21 EuErbVO), and a choice of the law of one’s nationality is possible (Art. 22 EuErbVO). For inheritance contracts, Art. 25 EuErbVO contains its own rules on admissibility, substantive validity and binding effect. The binding effect is in principle governed by the law that would have been designated as the law applicable to the succession when the inheritance contract was concluded, or by the chosen law (Art. 25 (1) and (3) EuErbVO); a later move abroad in principle changes nothing about this from the point of view of the Member States. Whether courts of a third state see it the same way must be clarified with an adviser on the spot. How a choice of law in a will or inheritance contract works is explained in Will when living abroad.
Open and to be examined in the individual case is which law governs a claim against a recipient abroad and which court has jurisdiction. Enforcement against a recipient who is domiciled abroad also depends on the state; on this see Enforcement of foreign judgments. If the gifted asset is located abroad, for example a property, the local property law must also be observed; an adviser on the spot should be consulted for this. Basics on inheriting foreign real estate are offered by Inheriting property abroad. Foreign law in part does not know inheritance contracts and claims for recovery at all or knows them in a different form; an adviser on the spot should be consulted on this.
Three Mistakes Contractual Heirs Often Make
The most common mistakes are acting too late, suing the wrong defendant and giving up too hastily because of a reservation of withdrawal.
- Waiting too long. The period begins with the death, not with the discovery of the gift. Anyone who checks only after years may be too late.
- Suing the wrong opponent. The claim is directed against the recipient, not against the estate, co-heirs or the community of heirs.
- Giving up the claim because of a reservation of withdrawal, or not securing evidence. According to the decision of 8 July 2026, the reservation alone does not exclude the claim; decisive are the circumstances of the gift and records of them.
Example (Fictitious)
Mrs. Brandt has concluded an inheritance contract with her husband in which the daughter Mira is appointed sole heir. The inheritance contract contains a reservation of withdrawal, which was not used. Two years before her death, Mrs. Brandt transfers her house gratuitously to an acquaintance and reserves a right of residence. After the death, Mira examines: Does the contractual binding effect exist? Was the house given away? Was there a recognisable lifetime interest of her own, for example thanks for care? And by when must the limitation be preserved? Names and details are invented.
Conclusion
§ 2287 BGB protects the contractual heir against the hollowing out of the appointment as heir by gifts, but requires an intention to impair and becomes time-barred three years after the death. A reserved, unexercised right of withdrawal does not exclude the claim according to the judgment of the Federal Court of Justice of 8 July 2026. Decisive are the wording of the inheritance contract, the circumstances of the gift and timely securing of evidence. Where there is a foreign connection, the question of the applicable law, jurisdiction and enforcement is added.
Frequently Asked Questions
Can I reclaim a gift that the testator made despite an inheritance contract?
Yes, under the requirements of § 2287 BGB: you must be appointed heir by contract, the gift must have been made after the binding effect arose and with the intention to impair, and the succession must have occurred. The claim is directed against the recipient.
How much time do I have?
The limitation period is three years and begins with the death (§ 2287 (2) BGB). It runs irrespective of when you learned of the gift.
Does a right of withdrawal in the inheritance contract exclude recovery?
According to the judgment of the Federal Court of Justice of 8 July 2026 (IV ZR 256/25), not merely because a right of withdrawal was reserved but not exercised. The further requirements of the claim must still be examined. A withdrawal actually declared has a different effect.
Do I have to prove that the testator wanted to disadvantage me?
In a dispute you bear the burden of presenting the requirements. In practice, the absence of a comprehensible lifetime interest of the testator points to an intention to impair. The recipient can offer counter-evidence, for example by records of care or support.
What changes if the testator or the recipient lives abroad?
Then the applicable law must be clarified first, from the point of view of German courts mostly according to the testator’s last habitual residence, and for inheritance contracts additionally according to Art. 25 EuErbVO. Jurisdiction and enforcement against a recipient abroad depend on the state. For the foreign law itself, an adviser on the spot should be consulted.
Attorney Dr. Johannes Fiala and the law firm, with a focus on international inheritance law, tax law and asset protection in Munich, advise contractual heirs and testators on inheritance contracts and gifts, from reviewing the binding effect through assessing the intention to impair to enforcement against the recipient, including where there is a foreign connection. Dr. Fiala has published extensively on questions of emigration and asset protection. Contact the firm without obligation to have your individual situation discussed in an initial consultation.
