Law firm for compulsory portion supplement claims

Claim to a supplementary compulsory portion – When gifts reduce the compulsory portion

The compulsory portion is intended to protect close relatives from being completely excluded from the inheritance by a will. However, even if the compulsory portion is clearly regulated in principle, its value can be considerably distorted in individual cases – especially if the testator gave away large assets during his or her lifetime.

To ensure that those entitled to a compulsory portion are not disadvantaged, the law provides for the so-called supplementary claim to a compulsory portion. It always applies when gifts artificially reduce the basis of the compulsory portion. This article explains in detail when a claim to a supplementary compulsory portion arises, how it is calculated and which special features are often overlooked.

Why the claim to a supplementary compulsory portion exists

The compulsory portion is based on the value of the estate at the time of death. However, many testators transfer assets during their lifetime – for tax reasons, to provide for family members or simply to benefit certain people. Without a legal correction, those entitled to a compulsory portion could end up empty-handed, even though substantial assets were originally available. This is precisely why Section 2325 of the German Civil Code provides for the supplementary claim: It prevents gifts from circumventing the right to a compulsory portion.

This means that certain gifts are added to the estate as if they were still there. The beneficiary of the compulsory portion then does not receive the compulsory portion from the actual estate, but from the notionally increased value.

Which gifts are taken into account

As a general rule, all gratuitous gifts made by the testator during his or her lifetime can be taken into account. These include above all:

• Gifts of money
• Real estate transfers
• Company shares
• Securities
• Transfers of valuable household effects or art
• Gifts to spouses, children or third parties

The claim to a supplementary compulsory portion is a frequent issue, particularly in the case of real estate or business transfers, as they represent major shifts in assets.

The melting model

Not every gift counts in full. The amount of the supplement is based on the so-called “meltdown model”:

Gifts made within the last year before death → 100%
In the 2nd year before death → 90 %
In the 3rd year before death → 80 %
… and so on
After 10 years → the supplement is completely omitted

In the case of spouses, however, the ten-year period begins much later or in some cases not at all if they continue to live together or the testator has reserved the right to use the property. This means that spousal gifts are often fully taken into account, which is often underestimated in practice.

Conditional gifts – a central pitfall

Many testators transfer real estate or assets during their lifetime, but retain a lifelong right of residence, usufruct or extensive rights of use. These so-called conditional gifts are not legally regarded as completed gifts. In practical terms, this means that the 10-year period does not start.

This means that even transfers that are 20 years old can be taken into account as part of the claim to a supplementary compulsory portion. This can have enormous financial consequences for those entitled to a compulsory portion – but also for the donee, who has often relied on a supposed legal certainty.

How the claim to a supplementary compulsory portion is calculated

The calculation basically follows a three-stage procedure:

1. determination of the value of the gift at the time of the donation

What is important is the value of the item at the time of the gift – not at the time of death. In the case of real estate or investments, this often requires an expert opinion or expert valuation.

2. determination of the chargeable quota

The percentage to which the gift applies is then determined in accordance with the amortization model. In the case of a gift five years before death, for example, this would be 60%.

3. addition to the estate and calculation of the compulsory portion

The eligible gift value is added to the actual estate. Only then is the compulsory portion determined.

An example
If the testator has two children, gives away a house worth €300,000 ten years before his death and leaves only €100,000 on his death, the following calculation point results: as the gift was made exactly ten years ago, the addition is 0%. The compulsory portion is therefore only based on the remaining €100,000. However, if the gift was made six years ago, 50% must be taken into account – i.e. €150,000 is added and the compulsory portion increases significantly.

Typical conflict situations with supplementary claims

Many heirs underestimate how demanding the valuation of gifts is. The most common points of contention are:

• lack of documentation on the value of the gift at the time
• Dispute over the question of whether a gratuitous gift was made
• Unclear about reserved rights (usufruct/right of abode)
• Disputes about the amount of the chargeable percentage
• Delayed or refusal to provide information by the heirs

Those entitled to a compulsory portion have a comprehensive right to information, which also extends to gifts. This is essential in order to calculate the supplementary claims correctly.

Why legal support is almost indispensable

While the simple compulsory portion can already be demanding, the claim to a supplementary compulsory portion is much more complex in many cases. It concerns not only the estate itself, but also asset transfers over the years – often without clear documentation. Without legal assistance, it remains unclear for many of those affected which gifts are actually to be taken into account and how high the supplementary claim is. In addition, recipients of gifts are often reluctant to provide comprehensive information, particularly in the case of valuable real estate or business transfers. Structured legal enforcement is crucial here.

As a law firm specializing in inheritance law, CDR Legal first examines in detail which gifts are relevant, which deadlines apply and how high the claim can be. Both the assets at the time of the gift and possible reservations or rights of use are analyzed.

We then request the necessary information, assess the actual supplementary amount and consistently enforce the claim – if possible by mutual agreement, but also in court if necessary – so that those entitled to a compulsory portion are not disadvantaged. During the free initial consultation, we analyze your individual situation and discuss the next steps with you.