The Rürup pension or private basis pension was considered so far as a seizure-safe age precaution. It is mainly used by the self-employed. However, on 01.12.2011, the Federal Court of Justice ruled that full attachment protection must not be given in order not to restrict the protection of creditors’ property. A contractually stipulated exclusion of exploitation is therefore no security.
Basic pension insolvency-proof?
In the case of private old-age provision through basic pension contracts, the state allows up to 20,000 euros per person and assessment year to be partially deducted for tax purposes as special expenses.
A precondition for this is, for example, that an exclusion of exploitation is contractually agreed. Cancellation, mortgaging, capitalisation, assignment, inheritance or pledging are thus contractually excluded.
Only in the event of retirement at the age of 62 or, in exceptional cases, earlier in the event of occupational disability, is a lifelong pension paid exclusively from the accumulated capital.
Many insurers stubbornly claim that the contractual exclusion of realisation also prohibits the creditor from realising the saved capital through termination. Therefore, the capital of the Rürup pension is insolvency-proof before the start of the pension. Only then could the basic pension due be seized like earned income. The declaration of the insolvency administrator not to enter into the contract means its termination.
The Federal Supreme Court – BGH judgement of 01.12.2011, Az. IX ZR 79/11 – ruled, however, that the contractual exclusion of realisation often invoked by insurers does not exclude seizure.
Basic pension insurance policies therefore do not inherently belong to the garnishment-protected insurance contracts. Such pension contracts are in the savings phase only then within certain limits seizure-proof, if they exceptionally at the same time meet all the requirements of the so-called seizure-protected pension according to § 851 c of the Code of Civil Procedure (ZPO) .
However, this also only offers limited protection, above which the saved capital can be seized in accordance with the ZPO even before the start of the pension. And these limits are far below the Rürup contracts tax-advantaged contributions.
Straight the gladly sold Rürup contracts with maximally tax-permitted inclusion of an occupational disability pension /BU pension) are not seizing-protected, because the BU pensions then far higher opposite the insured age pension contradict the requirements to a limited seizing-protected age precaution after ? 851 c ZPO – because they permit no higher BU pension than the later age pension.
No protection in the event of realisation by creditors
The insurers derive the attachment protection for Rürup contracts from the contractual prohibition of realisation, to which the creditor or insolvency administrator is also supposed to be bound.
This consideration however goes astray, as the BGH put it. Otherwise, there would even be completely unlimited protection against seizure in the case of old-age provision which is expressly protected against seizure only to a limited extent in accordance with § 851 c ZPO, if only because of the exclusion of realisation. However, this was not intended by the legislator and may not be introduced under constitutional law because of the protection of the creditor’s property.
No security with imputation because of Hartz IV
There is also no security in the case of imputation due to Hartz IV and other social benefits. In fact, within narrow limits, the exclusion of realisation serves to ensure that the pension saver only receives his capital in the form of a lifelong pension and cannot consume it beforehand. But if the state would have to pay Hartz IV or other social benefits, if necessary also legal aid, it can demand the prior consumption of the Rürup capital by extraordinary termination, as expressly stated in the explanatory memorandum to the law on seizure-protected old-age provision.
As stated there, an extraordinary right of termination cannot be excluded under special circumstances – such as the denial of Hartz IV benefits because of the Rürup capital – even in the case of a contractual ordinary prohibition of termination.
by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm
by courtesy of
www.elektropraktiker.de (published in Elektropraktiker 05/2012, page 379)
www.experten.de (published in Expert Report 03/2012, page 60-61)
published in Waffenmarkt-Intern 06/2010, page 16
www.pt-magazin.de (published in PT Magazine 2/2012, page 7)
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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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