Drawbacks to Berliner Testament
In cases involving a Berliner Testament (Berlin will) or spousal will, the spouses mutually appoint each other as sole heirs. This can lead to certain drawbacks, e.g. if the surviving spouse remarries.
GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: In cases involving a Berliner Testament, the spouses mutually appoint each other as sole heirs and generally the children they have in common as final heirs. A Berliner Testament is thus supposed to provide the partner who lives the longest with financial security after the death of his or her spouse. That being said, this kind of will, also referred to as a spousal will, might also give rise to certain disadvantages.
Things may become problematic, for instance, if the surviving spouse remarries. The new spouse is then automatically entitled to inheritance claims as well, at least with regard to the compulsory portion. The result is that the final heirs designated in the Berliner Testament are likely to inherit less than had been envisaged when drawing up a joint will. It is possible to include a so-called Wiederverheiratungsklausel (remarriage clause) as a way of preventing inheritance disputes. This stipulates that in the event one of the spouses remarries, the designated final heirs shall inherit at the time of this marriage. However, these kinds of provisions can potentially be interpreted as being contrary to public policy, as they may place too great a restriction on the surviving partner’s freedom to marry. One possible alternative is to convert sole heir succession into preliminary succession for life. In doing so, the children’s inheritance would remain protected. When it comes to these kinds of clauses, it is important to be mindful of the precise wording if one is to exclude the possibility of disputes arising among the heirs at a later date.
Another drawback pertaining to Berliner Testaments concerns the binding effect of the reciprocal provisions. The surviving spouse is no longer able to unilaterally amend these; they can only be mutually revoked, i.e. during the lifetime of both spouses. The right of revocation lapses upon the death of one of the partners. This should also be borne in mind, inter alia, when determining the final heirs and other far-reaching provisions.
When it comes to drawing up a will, there are many pitfalls and statutory regulations that need to be observed, and it is generally not possible for a layperson to keep track of all of these. It can therefore be helpful to seek the legal advice of lawyers who are experienced in the field of succession law when drafting a will, Berliner Testament or contract of inheritance.
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