How Free Are You to Appoint Your Heirs?
A person's last wishes have great importance in all cultures and are accordingly regulated in a legally precise manner. Nonetheless, there are legal regulations that allow for some testamentary leeway. There are therefore options to arrange the order of succession more freely during your lifetime – see example.
The legal inheritance regulation automatically comes into force if there is no testament. Using the example of a family with three children, with one child from the wife's first marriage, we will show how the parents can change the legal rule to best protect the surviving spouse and treat all three children equally.
Legal Order of Succession
If the deceased did not make a last will, the following are regarded as legal heirs:
- the relatives of the testator according to the degree of relationship
- the surviving spouse or registered partner
The direct descendants of the testator, i.e. the children, are the primary heirs. The surviving spouse has a special position. He or she receives half of the estate when there are children, as in our example. The other half is equally divided among the children. The child from the first marriage, however, is only entitled to inheritance from his or her biological parents. In the event of the death of the mother, he or she would receive 1/3 of the 50% children are entitled to, just like the two half-siblings. Under inheritance law, an adopted child is equal to a biological child, as is a child born out wedlock and recognized.
The legal regulations stating that the children and the surviving spouse each receive 50% of the inheritance only applies if there is no last will. Through a testament, testators can determine inheritance shares within a specified range themselves. Specifically, the person making the testament can determine that the spouse will only receive a minimum of 1/4 instead of 1/2 of the inheritance, or that the children will receive a minimum of 3/4 instead of half. In our case, the divisible portion is 3/8 of the inheritance, which the testator can dispose of as he or she sees fit. For instance, to give the spouse a bigger share of inheritance or put the child from the first marriage on equal footing with the biological children.
If you wish to take care of your family through your last wishes, you would do well to use marriage contracts, testaments, or inheritance contracts as instruments and coordinate them with each other.