In a legal doctoral thesis it is claimed that without a surrender value in a life insurance policy – as allegedly given in basic pension contracts – any amount of money can be protected as assets, protected from creditors and insolvency administrators. However, caution is advised here.
In a new textbook, originally a doctoral thesis in law, it is shown that, in contrast to the limited attachment protection of old age provision, basic pension contracts are neither capital-forming nor do they have a redemption value according to section 851c of the Code of Civil Procedure (ZPO), which is why they alone are not attachable in the savings phase.
Bany amount protected ?
According to section 851c of the Code of Civil Procedure, the capital of the so-called seizure-protected pension scheme, on the other hand, is – in contrast to the basic pension agreement – to be transferred above the set limits in the event of seizure, for example to creditors and insolvency administrator.
Thinking things through consistently to the end, one could claim that without a surrender value in a life insurance policy – as is allegedly the case with basic annuity contracts – one could even protect arbitrarily high amounts – protected from creditors and insolvency administrators – as assets.
The doctoral thesis justifies this: “However, as will be explained in the following, a seizure is ruled out simply because Rüruprente is not a capital-forming pension instrument with the consequence that the contractual partner is not entitled to a “surrender value” either in the saving or in the payout phase, which the creditor could seize.
Even if ordinary termination has been contractually excluded, the actuarial situation is in itself exactly the same as for any other capital-forming life insurance policy, and the non-payment of a surrender value in the case of both types of contract on termination does not mean that it does not exist and does not have to be transferred in the event of attachment.
The insurer will treat the ordinary, i.e. contractually excluded, termination as a termination of the contract – i.e. do not expect any further payments for the time being.
On the other hand, the creditor can terminate after an attachment, the insolvency administrator must proceed as in the case of an extraordinary termination or termination without notice – with the surrender value, possibly with the limited protection of the attachment-protected retirement provision in accordance with section 851c of the Code of Civil Procedure, with transfer of the excess amount.
Surrender value is available
For comparison, any pension insurance but without death benefit, can be used according to the type of basic pension, in any amount, and thus without a payable surrender value (RKW).
The allegedly non-existent RKW does exist, however, because according to the Versicherungsvertragsgesetz (VVG), it is decisive for the non-contributory benefit, for example if the contract is shut down, and this is also shown.
Here from an insurance certificate illustrating the surrender value for a basic pension:
“Current surrender values:
guaranteed benefit *) 5729 Euro
guaranteed profit participation *) 152 Euro
total amount including profit participation *) 5881 Euro
*) Due to the provisions of the Retirement Income Act on the basic pension, there is no available credit balance for your contract. Payment can only be made in the form of a lifelong pension in accordance with the insurance conditions”.
About 6,200 euros were paid in three years. The point is that you can’t prevent attachability through contractual provisions.
It is not possible in the entire enforcement law of the ZPO to exclude sovereign enforcement by means of judicial attachment by means of a private-contractual regulation on the prohibition of pledging or mortgaging.
The Federal Court of Justice (Federal Court of Justice, ruling of 1 December 2012, file no. IX ZR 79/11) already decided that a contractual exclusion of termination does not prevent the realisation of the life insurance policy through a termination by the insolvency administrator.
In case of doubt, the entire assets formed by premium payment with the insurer are gone – creditors can seize the surrender value by order of the enforcement court and have it transferred, insolvency administrators can terminate the (only contractually non-cancellable and only contractually non-assignable) insurance contract and collect the assets.
The Federal Court of Justice stated: “However, according to section 851 (2) of the German Code of Civil Procedure, non-transferable claims can be attached by agreement if the object owed is subject to attachment.
Rüruprente can also be seized before the pension begins
For (possibly partial) unseizability, additional regulations are required, for example, that the prerequisite for protection against seizure according to section 851c ZPO is met.
However, this is not automatically the case with insurance contracts that are brokered as a basic pension.
This always needs to be checked by an expert, because basic/ürup pensions are by their very nature first of all knitted in such a way that the tax office recognises them for tax purposes, and are not always also aligned according to Section 851 c ZPO.
A prohibition of exploitation contractually agreed with the insurer would speak against the limited protection against attachment for old-age provision in the Code of Civil Procedure and thus circumvent it.
Therefore, the Federal Court of Justice (BGH, ruling of 1 December 2011, file no. IX ZR 79/11) decided that the contractually stipulated exclusion of exploitation cannot prevent attachment.
At most insurance brokers in Germany, pension insurance policies with partial protection against seizure can be obtained at best, currently at most with the prospect of a pension of up to less than 600 euros per month.
by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm
by courtesy of
www.cash-online.de (published on 26.04.2016)
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PhD, 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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