The Berlin Will: How a Joint Will Works for Couples in Germany

The Berlin will (Berliner Testament) is a joint will in which spouses appoint each other as sole heirs. Only after both have died does the estate pass to the final heirs, usually the children. Its aim is to secure the surviving spouse.

Only married couples and registered partners can make a joint will. It is simple to set up, but it has consequences that should be considered carefully, especially for international families and larger estates.

How It Works

1. First death. The surviving spouse inherits everything as sole heir.
2. Second death. The final heirs, usually the children, inherit the entire remaining estate.

The children are disinherited after the first death. They only inherit from the surviving parent.

Form

A joint will can be made:

• by hand: one spouse writes the entire text by hand and both sign it, ideally with place and date, or
• at a notary, who advises both spouses and deposits the will.

Binding Effect

Arrangements that the spouses made in view of each other (wechselbezügliche Verfügungen) become binding after the first death. The surviving spouse can then no longer change the final heirs, unless the will expressly allows this.

During the lifetime of both spouses, each can revoke the will, but only by a notarised declaration delivered to the other.

A remarriage of the surviving spouse does not end the binding effect by itself. Many wills therefore include a remarriage clause.

The Compulsory Portion Problem

After the first death, the children are disinherited and can claim their compulsory portion from the surviving parent. This can force the parent to sell assets such as the family home.

Many Berlin wills contain a penalty clause (Pflichtteilsstrafklausel): a child who claims the compulsory portion after the first death also receives only the compulsory portion after the second death. This discourages, but does not prevent, the claim. See the compulsory portion.

The Tax Problem

Each child has an allowance of €400,000 for inheritance tax from each parent. With a Berlin will, the children inherit nothing after the first death, so the allowance from that parent is lost. At the second death, they inherit the combined estate with only one allowance. The surviving spouse also has to pay tax on everything above their own allowance of €500,000.

For larger estates, this can cost a lot. Common solutions are legacies for the children after the first death, up to their allowances. See inheritance tax in Germany.

Points for International Couples

• Not recognised everywhere. Some countries do not recognise joint wills. If you own property abroad or may move, check whether the will is effective there.
• Choice of law. The will can include a choice of the law of your nationality, which can affect its validity and binding effect.
• Children from previous relationships. In patchwork families, the Berlin will can unintentionally exclude stepchildren or one partner's children. Individual advice is important.

Frequently Asked Questions