The supplementary compulsory portion (Pflichtteilsergänzung) for foreign assets depends on the applicable inheritance law: if German law applies, gifts of foreign assets are also notionally added to the estate (§ 2325 German Civil Code, Bürgerliches Gesetzbuch, BGB), with a phasing out over ten years. The claim is directed against the heir, and subsidiarily under § 2329 BGB against the recipient of the gift, and against the latter the limitation period begins with the death. If foreign law applies, it determines whether and how a supplement is made.
If the testator gave away assets during his or her lifetime, the person entitled to a compulsory portion can under certain circumstances demand a supplement to the compulsory portion. This also applies if the gifted asset was located abroad or the recipient lives abroad. In the supplementary compulsory portion with foreign assets, three questions arise at the same time: which inheritance law applies, how is the gift valued, and how can the claim be enforced against heirs or recipients? This article deals with the supplement because of gifts; the ordinary compulsory portion with foreign assets is explained in Compulsory portion law and foreign assets. The legal position is as of October 2026. It is written for readers abroad as well, for example children or other relatives of a German testator who live outside Germany.
What the Supplementary Compulsory Portion Regulates
The supplementary compulsory portion compensates for the fact that gifted assets are missing from the estate. The ordinary compulsory portion is directed against the estate as it exists at death (§ 2303 BGB). Where the entitled person lives and which nationality he or she holds plays no role for the claim; what matters is the law that applies to the testator. If assets were given away beforehand, they are missing from the estate. For this the law provides the supplement: if the testator has given something to a third party, the person entitled to a compulsory portion can demand, as a supplement, the amount by which his or her compulsory portion would increase if the gifted asset were added to the estate (§ 2325 (1) BGB). One therefore calculates with a notional estate.
The claim is a claim for payment against the heir. It exists regardless of whether the testator gave gifts to co-heirs, other relatives or strangers. Gifts to the person entitled to a compulsory portion himself or herself are set off against his or her claim (§ 2327 BGB). Gifts made out of moral duty (Anstandsschenkungen), that is, customary occasional gifts, are disregarded (§ 2330 BGB).
How the Value of the Gift Is Determined
What matters in principle is the value of the gift at the time of death, but at most the value at the time of the gift (§ 2325 (2) BGB). This lowest-value principle means that the value at the time of the gift acts as an upper limit if the object has meanwhile risen in value. If it has fallen, the lower value at death counts. According to the case law, the lower gift value is adjusted to price developments (BGH, judgment of 4 July 1975, IV ZR 3/74, BGHZ 65, 75); exactly how this is done is a frequent point of dispute for real estate. For consumable things, such as money, the value at the time of the gift applies.
The Ten-Year Phasing Out and Its Exceptions
A gift is taken into account in full in the first year before death, in each further year by one tenth less. After ten years it is disregarded (§ 2325 (3) BGB). For gifts to the spouse, this period does not begin before the marriage is dissolved. According to the case law of the Federal Court of Justice (Bundesgerichtshof), the period also does not begin to run as long as the testator has not actually given up the enjoyment of the gifted object (judgment of 27 April 1994, IV ZR 132/93, on usufruct). This concerns above all a comprehensively reserved usufruct (Nießbrauch). In the case of a reserved right of residence, the scope matters; a right over only parts of the house prevents the start of the period only in exceptional cases (judgment of 29 June 2016, IV ZR 474/15). On usufruct see Waiver of usufruct against compensation. Anyone who concludes from the ten-year rule that an older gift is disregarded in every case overlooks these exceptions.
← Tabelle nach links wischen, um weitere Spalten zu sehen
| Time of the gift before death | To be taken into account |
|---|---|
| up to one year | full value |
| between one and two years | 9/10 |
| between two and three years | 8/10 |
| between four and five years | 6/10 |
| between nine and ten years | 1/10 |
| more than ten years | disregarded, provided the period really ran |
Whom the Claim Affects: Heir and Recipient
The claim for the supplementary compulsory portion is directed first against the heir and only subsidiarily against the recipient. If the heir is himself or herself entitled to a compulsory portion, he or she can refuse the supplement to the extent that otherwise less than his or her own compulsory portion would remain to him or her (§ 2328 BGB). If the heir is not obliged to pay the supplement, for example because the estate is exhausted, the person entitled to a compulsory portion can demand surrender of the gift from the recipient for satisfaction (§ 2329 (1) BGB). The recipient can avert surrender by paying the missing amount (§ 2329 (2) BGB). If there are several recipients, the earlier recipient is liable only to the extent that the later one is not obliged (§ 2329 (3) BGB).
Limitation Differs
For the supplement against the heir, the general limitation rules apply: three years, beginning at the end of the year in which the entitled person learned of the death and of the disposition impairing him or her, at the latest after thirty years. The claim against the recipient is different: here the limitation period begins with the death (§ 2332 (1) BGB), irrespective of knowledge. Anyone who learns of the death and of a larger gift only two and a half years after the death has only a few months left for this claim. This applies especially to entitled persons abroad, who are often informed late.
The Claim to Information: How You Learn of Gifts
Anyone who wants to demand the supplementary compulsory portion must first know what was given away; the claim to information serves this purpose. The person entitled to a compulsory portion can demand information from the heir about the composition of the estate (§ 2314 BGB). This also includes details of the gifts of recent years, to the extent that they matter for the supplement. The entitled person can demand a notarial inventory of the estate and the determination of the value of individual objects; the estate bears the costs. The heir may not leave out gifts on his or her own authority because he or she considers them gifts made out of moral duty. Whether a transfer increases the supplement is a legal assessment that is possible only after complete information. A stufenklage (stepwise action), which combines information, valuation and payment in stages, regularly serves for enforcement.
Foreign Assets: The Decisive Preliminary Question Is the Law Applicable to the Succession
With foreign assets, the applicable inheritance law, the Erbstatut, first decides on the supplement. Whether and in what amount a supplementary compulsory portion exists is determined by the law applicable to the succession. 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). Under Art. 21 EuErbVO, the law of the state in which the testator had his or her habitual residence at the time of death applies in principle; under Art. 22 EuErbVO the law of nationality can be chosen. Under Art. 23 (2) letters h and i EuErbVO, this law also determines the disposable part of the estate, the compulsory portions and the equalisation and set-off of gratuitous transfers. For the basics see German inheritance law when living abroad.
Case 1: German Law Applies
If the testator last lived in Germany and did not choose another law, or if as a German he or she chose German law, § 2325 BGB generally applies. A foreigner whose last residence was in Germany may have chosen his or her home law; the chosen law then applies. If German law applies, foreign assets are also included in the calculation: the estate is regarded as a unit, and gifts of foreign assets are to be taken into account just like gifts of domestic assets. Anyone who gives a property abroad to a child changes nothing about the supplement if German inheritance law applies. Moving the asset abroad therefore regularly brings the recipient only practical advantages in enforcement, not legal ones.
Case 2: Foreign Law Applies
If the testator had his or her last habitual residence in another state and German law was not chosen, the supplement is also governed by that law. Some legal systems do not know a compulsory portion in the German sense or provide for other mechanisms, for example a share in the estate itself or court-ordered provision. An adviser on the spot should be consulted on the details.
The limit is the public policy reservation (Art. 35 EuErbVO). By judgment of 29 June 2022 (IV ZR 110/21), the Federal Court of Justice decided that the application of chosen English law in the case decided there violates German ordre public, because the testator’s child lacked any compulsory portion independent of need. Decisive was the strong domestic connection: the testator had lived in Germany for over 50 years, the child lives here, the assets were located here. The gap was closed with German compulsory portion law, and the information also covered gifts subject to supplement from the last ten years. How far this carries in the case of a weaker domestic connection or assets abroad, the Senate did not decide; the result depends on the individual case and the connection with Germany.
Case 3: Split of the Estate
If the testator last lived in a third state and its law refers, for land situated in Germany or another Member State, to the law of the place where it is situated, the estate can split into a German and a foreign part (Art. 34 (1) EuErbVO). With a last residence in a Member State, there is no such renvoi. If a split occurs, the compulsory portion and its supplement under German law are measured only by the part that is subject to German law. Which gift is to be allocated to which part can be disputed. On inheriting foreign real estate see Inheriting property abroad.
Valuation and Evidence for Foreign Assets
With foreign assets, valuation and evidence are often the hardest part, because practical problems arise that have little to do with the law. The value at the time of the gift and at the time of death must be determined, for real estate often with local experts. Payments in foreign currency must be converted; which reference date and which exchange rate are decisive should be agreed early. Documents often lie with banks, notaries or authorities abroad and are usable only with translations, certifications or an apostille. Claims to information against the heir help but do not replace one’s own research.
Enforcement Abroad: Jurisdiction, Costs, Enforcement
Enforcement abroad depends on jurisdiction, costs and enforceability. International jurisdiction for disputes in inheritance matters is in principle governed by the EuErbVO, that is, mostly by the testator’s last habitual residence (Art. 4 EuErbVO). For the claim against a recipient resident abroad too, there is much to suggest the jurisdiction rules of the EuErbVO, because the Brussels Ia Regulation excludes inheritance law; this has not been settled by the highest court, so jurisdiction should be examined in the individual case. Assets of the recipient or heir located in Germany remain the simplest point of access. For the enforcement of a German judgment abroad: within the EU, European rules facilitate recognition, whereas with third states enforcement is uncertain; on this see Enforcement of foreign judgments.
A claimant who has his or her habitual residence outside the EU and the European Economic Area may under certain circumstances have to provide security for costs (Prozesskostensicherheit) on the defendant’s demand (§ 110 Code of Civil Procedure, ZPO), unless international treaties exclude this. The presiding judge can in suitable cases permit or order participation by video and audio transmission (§ 128a (2) ZPO); whether connecting from abroad is permissible should be clarified in advance. The power of attorney for a German lawyer must be in writing in civil proceedings (§ 80 ZPO); the wording does not require certification.
Taxes and Double Taxation
The supplementary compulsory portion also has tax consequences. Compulsory portion claims are subject to inheritance tax; the tax arises only when the claim is asserted (§ 9 (1) no. 1 Inheritance Tax Act, ErbStG). A report to the tax office is required within three months of knowledge (§ 30 ErbStG). Anyone who lives abroad does not automatically remain outside German tax liability if the testator was a resident; for credit of foreign tax and for treaties see Inheritance tax and double taxation treaties. The Federal Constitutional Court (Bundesverfassungsgericht) heard the inheritance tax cases in October 2026; until a decision, the law in force continues to apply, and changes are possible.
Where the legal position is unclear or changing, a binding ruling from the tax office should be obtained before implementation (§ 89 (2) Fiscal Code, Abgabenordnung, AO; fee under § 89 (3) to (7) AO), where there is a foreign connection possibly also in the other state.
Structuring: What Testators Should Consider before a Gift
Before a gift, testators should consider timing, rights of use and set-off. Anyone who wants to transfer assets and expects compulsory portion claims has legal options, but also risks. Important are the timing (ten-year period), the waiver of reserved rights of use, the set-off of transfers (§ 2315 BGB) and the waiver of the compulsory portion by the person concerned. On the waiver of the compulsory portion in an international context see Waiver of the compulsory portion in an international succession. A move alone, to avoid compulsory portions, does not carry without more: the habitual residence must actually have been relocated, and the public policy reservation remains.
Example (Fictitious)
Mr. Dorn leaves an estate of 200,000 euros. Four and a half years before his death he gave his holiday apartment abroad, worth 300,000 euros then and now, to his daughter Kira. His son Jonas was disinherited, the heir is his partner Mrs. Hahn. If German law applies, Jonas’s statutory share of the inheritance is one half, his compulsory portion one quarter. From the estate a compulsory portion of 50,000 euros results. The gift lies in the fifth year before death and counts at six tenths, that is, at 180,000 euros. The supplement is one quarter of that, 45,000 euros. Here the estate suffices; Mrs. Hahn owes both. A claim against Kira under § 2329 BGB would come into consideration only if the heir were not obliged to pay the supplement, for example because the estate is exhausted, and then with the short limitation period from the death. All details are invented.
Three Mistakes That Often Happen
- Overlooking the short period. The claim against the recipient becomes time-barred three years after the death, not only after knowledge.
- Not asking about gifts. Anyone who looks only at the estate overlooks transfers of accounts, real estate and company shares, including abroad.
- Relying on the ten-year limit. A comprehensive usufruct can mean that the period does not begin; for gifts to spouses it begins only when the marriage is dissolved.
Conclusion
The supplementary compulsory portion can increase the compulsory portion if the testator gave gifts. With foreign assets, the applicable inheritance law decides first; if German law applies, assets abroad count as well. The claim against the recipient becomes time-barred quickly, the phasing out after ten years has exceptions, and enforcement abroad requires planning as to jurisdiction, costs and enforcement. An early review of the gifts and deadlines is therefore sensible.
Frequently Asked Questions
Do foreign assets count in the supplementary compulsory portion?
If German inheritance law applies, yes: the estate is regarded as a unit, and gifts of foreign assets are included. In case of a split of the estate or a foreign law applicable to the succession, this can be different.
Does the ten-year period also apply to gifts abroad?
The phasing out under § 2325 (3) BGB applies if German law is applicable. According to the case law, it regularly does not begin in the case of a comprehensive usufruct as long as the testator has not given up the enjoyment of the gift; for rights of residence the scope matters. For gifts to spouses it begins only when the marriage is dissolved.
Can I claim against the recipient abroad?
Yes, under the conditions of § 2329 BGB, to the extent that the heir is not obliged to pay the supplement. Jurisdiction and enforcement depend on the state. The limitation period begins with the death.
Do I have to travel to Germany for this?
As a rule not. Correspondence, information and negotiation run through a lawyer, for civil proceedings a written power of attorney suffices, and the court can permit participation by video. Individual certifications may require a trip or a consulate appointment.
What changes if the testator moved abroad?
Then the applicable inheritance law can be governed by the new habitual residence. Foreign law then decides on the compulsory portion and the supplement; an adviser on the spot should be consulted on this. The limit is the public policy reservation.
Attorney Dr. Johannes Fiala and the law firm, with a focus on international inheritance law, tax law and asset protection in Munich, advise persons entitled to a compulsory portion, heirs and testators on the supplementary compulsory portion with foreign assets, from reviewing the applicable law through valuing the gifts to enforcement against heirs and recipients. 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.
