Recent BGH Jurisdiction on the Beneficiary's Right to Information and Right to Determination of the Value of a Compulsory Share

If close relatives, in particular descendants, parents or the spouse are disinherited by a testamentary disposition, they are entitled to a statutory claim to a compulsory portion and a claim to a supplementary compulsory portion in the amount of half of their statutory share of the inheritance against the heirs. However, a beneficiary of a compulsory portion can only quantify and enforce his or her claims if he or she has knowledge of the existence and value of the estate. For this purpose, section 2314 BGB (Civil Code) grants him claims to information and valuation against the heir.  The scope of these claims for information and valuation were recently the subject of decisions of the Bundesgerichtshof ("BGH" - Federal Court of Justice): 

BGH judgment of 20.05.2020 - IV ZR 193/19.

In its judgment of 20.05.2020, the BGH ruled that a beneficiary of a compulsory portion may be entitled to a claim for correction or completion of a notarial estate inventory even if it is partially incomplete due to the heir's failure to cooperate.

The following applies in principle: A beneficiary of a compulsory portion can demand that a inventory of the estate be drawn up by a notary (section 2014, para 1, sentence 3 of the BGB). If this is provided, the beneficiary of the compulsory portion can in principle not demand a correction or completion, unless the estate inventory does not list objects of the estate or information on gifts or the notary has limited himself to reproducing the heir's statements without conducting his own investigations.

In its judgment of 20 May 2020, the BGH allowed a further exception. According to this decision, a claim for completion and correction of the estate inventory also exists if the notarial estate inventory is partially incomplete due to the heir's lack of cooperation. With this decision, the BGH strengthens the position of the beneficiary of the compulsory portion, in particular against uncooperative heirs.

BGH judgment of 29.09.2021 - IV ZR 328/20

Pursuant to section 2314 BGB, the beneficiary of the compulsory portion is also entitled to a claim against the heirs for the determination of the value of the estate. Especially in the case of the existence of real estate, this claim for value determination is of essential importance.

Up to now, however, the heirs could avoid the claim to valuation of the beneficiary of the compulsory portion by selling an estate property shortly after the inheritance. For the calculation of the compulsory portion claims, only the achieved sales proceeds were then decisive, even if these appeared to be obviously too low.

The BGH has recognised this problem and has now "put a stop to it". It ruled that a claim to a valuation pursuant to section 2314 para 1 sentence 2 BGB exists even after the sale of an object of the estate if the beneficiary of the compulsory portion can assert a continuing interest in the valuation. Such an interest exists, especially, if different expert opinions exist and they do not provide a clear picture of the value of the property. Even if the property has already been sold, an valuation must remain possible in order to be able to determine the actual value. Otherwise, it would be impossible or at least more difficult to prove that the proceeds of the sale did not correspond to the actual market value. The BGH clarifies that the valuation according to section 2314 para 1 sentence 2 BGB must be carried out by an impartial expert, irrespective of whether it is a publicly appointed and sworn expert.

This supreme court ruling also strengthens the position of the beneficiaries of the compulsory portion.

BGH judgement of 30.11.2022 - IV ZR 60/22

Only the beneficiary of the compulsory portion who has not become heir is entitled to the claims for information and valuation pursuant to section 2314 BGB. This of course initially means the disinherited beneficiary of the compulsory portion. But what applies if the beneficiary of the compulsory portion has caused his or her lack of inheritance himself or herself, e.g. by disclaiming his or her share of the inheritance?

In the case decided, the BGH followed the prevailing opinion and granted a beneficiary of a compulsory portion a right to information under section 2314, subsection 1 BGB even after disclaiming his share of the inheritance.

As a result, the BGH has strengthened the position with its above-mentioned rulings, which must be taken into account when advising and structuring the succession and also opens up new scope of action.