Separating from a spouse not only brings emotional and financial challenges – it also raises questions on other levels. Many people do not immediately realise that a separation as such has no effect on the ex-partner’s position under inheritance law or an existing power of attorney. In this blog post, we look at the potential need for action during the separation phase with regard to inheritance law and power of attorney. We also take a brief look at insurance policies with subscription rights.

1. Interitance Law

1.1 Need for action during separation

In principle, spouses remain entitled to inherit during the separation period and inherit in the event of the death of the spouse who is still married. There is no automatic mechanism that cancels or restricts the right of inheritance. If there is no will or contract of inheritance, the spouse inherits on the basis of the statutory right of inheritance. The extent of this depends on the matrimonial property regime of the spouses and which other persons are entitled to inherit. Assuming that a couple is married under the most common matrimonial property regime in Germany – the statutory matrimonial property regime/community of accrued gains – and has one or more children, the spouse inherits ½ of the deceased spouse’s assets in the event of death.

If the (still) spouse is to inherit nothing or as little as possible (see below) during the period of separation, action must be taken:

• If there is an individual will in favour of the spouse, this should be reviewed. If you no longer wish your spouse to inherit, it makes sense to revoke it promptly. The requirements for revocation depend on whether the will was handwritten or notarised. While a handwritten will can be revoked by destroying it, via a revocation will or by a contradictory will, a notarised will must be removed from the official custody of the register of wills (“Testamentsregister”). As the revocation revives the statutory right of inheritance, the (still) spouse must then be disinherited in a further step by means of a new last will, i.e. the inheritance share must be diverted away from the spouse.

• If there is a joint will with the spouse which favours the spouse (e.g. in the form of a “Berliner Testament”), this must either be revoked together with the spouse/removed from official safekeeping or a notarised revocation must be unilaterally served on the spouse (§§ 2271, 2296 BGB). If there is an inheritance contract with the spouse, it must first be checked whether there is a right of withdraw and this cancellation must then be declared if necessary. In this case, the spouse’s statutory right of inheritance is revived also and the spouse must also be actively disinherited the (still) spouse by means of a new will.

• If no will/inheritance contract has existed to date, the statutory right of inheritance continues to exist in favour of the spouse even in the event of separation. If you want to override this, you must also make a will and disinherit your spouse.

• In addition to the possible revocation/withdrawal from an existing will or inheritance contract or the drafting of a new will, it should not be forgotten that spouses are entitled to a compulsory portion (“Pflichtteil”) until the divorce becomes final. This amounts to ½ of the statutory inheritance. On the basis of the right to a compulsory portion, the surviving spouse can demand a minimum share of the deceased spouse’s inheritance from the heirs even in the event of disinheritance. This risk can be minimised by waiving the compulsory portion (alternatively: waiver of inheritance), which must be notarised. However, the spouse must be convinced to actually declare such a waiver of the compulsory portion. There is often no willingness during the separation period or incentives must first be provided.

1.2 What happens under German Inheritance Law in the event of divorce?

The statutory right of inheritance and the right to a compulsory portion cease to apply only when the marriage has been divorced or – depending on the circumstances – already when the petition for divorce has been served. 

An individual will in favour of the (then divorced) spouse does not necessarily lose its effect upon divorce. Rather, this depends on the specific wording of the will and should therefore be checked. After the divorce, you should also clarify whether the resulting statutory succession corresponds to your own wishes and, if necessary, make a new will.

2. General Powers of Attorney

In addition to Inheritance Law, in the event of separation it should also be checked whether powers of attorney exist, e.g. a general and precautionary power of attorney or an individual bank power of attorney, which names the ex-partner as the holder of the power of attorney. There is no automatic mechanism that neutralises the effect of a granted power of attorney in the event of separation. Unlike in Inheritance Law, the validity of the power of attorney does not lapse even in the event of a final divorce. If you do not wish to retain the power of attorney granted, they should be revoked promptly.

3. Tip: Check insurance policies with subscription right

Insurance issues also need to be clarified. Particular attention should be paid to insurance policies in which specific beneficiaries are named. In many cases, spouses are entered in the policy as beneficiaries of a life insurance or pension insurance policy and – depending on the contractual constellation – neither separation nor divorce automatically cancels this status. 

If there is a separation, it should be checked promptly whether the spouse should continue to be considered as a beneficiary and, if necessary, a change should be made. It is advisable to contact the insurance company to ensure that the insurance continues to fulfil the desired purpose after the separation and that there are no unwanted beneficiaries.