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Wills in cases involving childless married couples

Published: 25 Sep 2017

Those who wish to play it safe when it comes to the subject of inheritance ought not to rely on the rules of intestate succession and should instead prepare a will. This also applies to childless couples.

It is a misconception that the surviving spouse automatically becomes the sole heir following the death of his or her partner in cases concerning childless married couples. If no will or contract of inheritance exists, the rules of intestate succession apply. In these instances, it is not only the surviving spouse who is entitled to inherit but also the parents of the deceased or his or her siblings as well as potentially more distant relatives. It can therefore by no means be assumed that the spouse will be provided for, it being possible for disputes to arise among the heirs. This can particularly become a problem in cases where the estate includes real estate. It may even prove necessary to sell the property. We at the law firm GRP Rainer Rechtsanwälte note that it is possible to prevent these kinds of inheritance disputes by drafting a will or contract of inheritance.

The testator is able to determine who will become heir in a will. Married couples have the option of drawing up individual wills for each spouse or preparing a joint will. The advantage of the latter is that the joint provisions normally have a strong binding effect and are difficult to amend unilaterally. Spouses typically mutually appoint each other as sole heirs in this kind of will. Notwithstanding this, it ought to be noted that the testator’s parents are also entitled to a share in the compulsory portion if no effective agreement waiving the compulsory portion has been reached.

In cases involving childless unmarried couples it is even more important to prepare a testamentary disposition, as the surviving partner will come away empty handed in the absence of a will or contract of inheritance because he or she is not accounted for by the rules of intestate succession. However, it is not possible for unmarried couples to draft a joint will. In these cases, each partner can prepare his or her own will, but these can be altered at any time. For this reason, it may make more sense in cases involving unmarried couples to draw up a contract of inheritance.

It is a good idea to address the issue of preparing a will or contract of inheritance early on so that the testamentary dispositions can be implemented to the greatest extent possible in accordance with the wishes of the testator. Lawyers who are experienced in the field of succession can advise accordingly.


Michael Rainer

Firm: GRP Rainer LLP
Country: Germany

Practice Area: Commercial

  • Augustinerstraße 10
    50667 Cologne

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