The law only protects contributions that are actually subsidized. Overpaid contributions are not included.
financial institutions in the training material for their advisers and agents that the assets saved in Riester contracts cannot be seized. The opposite is true, as evidenced by a ruling of the Munich District Court dated 12.12.2011 (Case No. 273 C 8790/11).
All assets in Riester contracts, insofar as they are based on contributions that were not subsidised, can be seized by a creditor or insolvency administrator at any time and paid out to him. The AG Munich concludes this from the clear wording of § 97 EStG, which clearly does not speak of eligible but only of subsidised contributions. As the Munich Regional Court points out, the ineligible contributions are not only those contributions which were contractually agreed from the outset as ineligible overpayments. The same applies to contributions for which a subsidy has actually not yet been paid at the time of attachment. This does not only affect the frequent cases of a decrease in income, where the Riester contract is not reduced and thus part of the contributions can no longer be subsidised.
Because the wording of the statutory provisions only refers to the contributions that have actually been subsidised, but not to the contributions that are “eligible” in principle and the assets built up from them, the entire Riester capital saved from contributions for which no subsidy has yet been paid can be seized. This applies, for example, if contributions have been paid in during the year but the subsidy cannot be claimed until after the end of the year. If the grant has already been applied for but a decision has not yet been made on the grant application or the grant has not yet been paid out, an attachment is also possible. It is therefore almost certain that every Riester contract will have something to be seized by creditors and insolvency administrators.
If the insolvency administrator or a creditor works fast enough, he often gets back the entire Riester assets from overpaid amounts even for the years of the subsidy, plus the contributions of the years for which a subsidy has not yet been applied for or paid out, and the contributions of the current year for which no subsidy application could be made at all. With regard to the remainder, the creditor must wait and see whether the policyholder cancels the contract or has the partial capital paid out at the start of the pension. However, he can seize the Riester pension at the latest, if necessary also completely. What has escaped seizure can already be seized today as a later pension, insofar as the social assistance level is exceeded with all other income.
by Dr. Johannes Fiala
published in Versicherungsvertrieb issue 6/2014, 15.12.2014
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Dr. Johannes FialaPhD, MBA, MM
Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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