Ashford International Law P.C.

German statutory succession (gesetzliche Erbfolge) applies to the estate of a person habitually resident in Germany who leaves no valid will, and, under the EU Succession Regulation, to German real estate of a person domiciled in the United States. The rules are set out in §§ 1922 to 1936 of the German Civil Code (Bürgerliches Gesetzbuch, BGB). They differ from the American statutes in structure as well as in substance: the heirs succeed to the estate directly, without an administrator, and the share of the surviving spouse depends on the spouses’ marital property regime. This page describes the rules as of September 2026, with regard to American families with German assets or heirs. The overview of statutory succession compares Germany with Maryland, Virginia, the District of Columbia and California.

Summary

1. On death, the entire estate passes to the heirs by universal succession. There is no probate administration and no administrator; the heirs hold the estate jointly and are liable for the decedent’s debts.
2. Relatives inherit in orders. Descendants form the first order, parents and their descendants the second, grandparents and their descendants the third. Any relative of an earlier order excludes all relatives of later orders.
3. The surviving spouse receives one-quarter alongside descendants and one-half alongside the second order or grandparents. Under the German statutory property regime, that share is increased by a further quarter.
4. An heir may disclaim within six weeks, or within six months if the decedent’s last residence was abroad or the heir is abroad when the period begins. An heir who does not disclaim is treated as having accepted.
5. German inheritance tax is levied on each heir. It applies to the worldwide estate where the decedent or the heir is resident in Germany, with allowances from €20,000 to €500,000 and rates from 7 to 50 percent.

Part I. Universal succession

On death, the decedent’s property passes as a whole to the heir or heirs (§ 1922 BGB). The heirs acquire the estate automatically at the moment of death, without a court appointment and without any act of acceptance, subject to their right to disclaim. The heirs are liable for the estate debts (§ 1967 BGB), but may limit that liability to the estate through estate administration or estate insolvency proceedings (§§ 1975 and 1990 BGB). German law has no survivorship title comparable to a joint tenancy; a co-ownership share in German real estate passes to the heirs of the co-owner. Only certain contracts in favor of third parties, such as life insurance with a named beneficiary, pass outside the estate (§ 331 BGB).

Part II. The orders of heirs

Relatives inherit according to the following orders (§§ 1924 to 1930 BGB):

1. First order: the descendants. Children take equal shares. A living descendant excludes that descendant’s own descendants, and the descendants of a predeceased child take that child’s share by branches (§ 1924 BGB).
2. Second order: the parents and their descendants, that is, the siblings, nieces and nephews. If both parents survive, they take alone in equal shares; the share of a predeceased parent passes to that parent’s descendants (§ 1925 BGB).
3. Third order: the grandparents and their descendants, that is, aunts, uncles and cousins, with the same mechanism for each pair of grandparents (§ 1926 BGB).
4. Fourth and further orders: the great-grandparents and more remote ancestors and their descendants, with the nearest in degree taking (§§ 1928 and 1929 BGB).

A relative is not entitled to inherit as long as any relative of an earlier order is living (§ 1930 BGB). Where no relative, spouse or registered life partner survives, the estate passes to the federal state (Land) of the decedent’s last residence or, failing one, to the Federal Republic (§ 1936 BGB). Until the heirs are known, the probate court may appoint an estate curator (Nachlasspfleger) to secure the estate (§ 1960 BGB).

Part III. The surviving spouse

The spouse’s statutory share is one-quarter alongside relatives of the first order and one-half alongside relatives of the second order or grandparents. Where there are no relatives of the first or second order and no grandparents, the spouse receives the entire estate (§ 1931(1) and (2) BGB). The spouse is also entitled to the household effects (Voraus) in addition to the share (§ 1932 BGB).

The share then depends on the matrimonial property regime. Under the statutory regime of community of accrued gains (Zugewinngemeinschaft), the share is increased by one-quarter of the estate as a flat equalization of gains, irrespective of whether any gains were made (§ 1371(1) BGB). Under separation of property (Gütertrennung), a spouse inheriting alongside one or two children takes an equal share with each child (§ 1931(4) BGB). Under community of property (Gütergemeinschaft), the decedent’s half of the joint property falls into the estate and the spouse receives the basic share, in addition to the spouse’s own half.

§§ 1931 and 1371 BGB. Under community of property, the spouse also retains the spouse’s own half of the joint property.

The additional quarter is classified as a matter of succession (Court of Justice of the European Union, judgment of March 1, 2018, C-558/16, Mahnkopf), but it presupposes that German matrimonial property law governs the marriage. For marriages concluded on or after January 29, 2019, that law is determined by Regulation (EU) 2016/1103, which in the absence of a choice refers first to the spouses’ first common habitual residence after the marriage (Art. 26); earlier marriages remain subject to the former German conflict rules (Art. 229 § 47 EGBGB). Spouses who married in the United States and lived there first are therefore frequently not subject to German matrimonial property law, and German courts have generally declined to apply the additional quarter in such cases.

Under the statutory regime, a spouse who disclaims may instead claim the actual equalization of accrued gains and a compulsory share (§ 1371(2) and (3) BGB). The spouse’s rights are excluded where the requirements for a divorce were met and the decedent had filed for or consented to the divorce (§ 1933 BGB). A registered life partner has the rights of a spouse (§ 10 LPartG); an unmarried partner has no statutory right of inheritance.

Part IV. Children and other family situations

Children born outside marriage inherit from both parents on the same terms as children born within marriage; for deaths after May 28, 2009, this also applies to children born before July 1, 1949. A child adopted as a minor becomes the child of the adopting parents, and the relationship with the birth family ends (§ 1754 BGB). An adoption of an adult ordinarily has more limited effect: the adoptee inherits from the adopting parent but not from the adopting parent’s relatives, and retains the relationship with the birth family (§ 1770 BGB). Stepchildren are not relatives and do not inherit. A child who was conceived but not yet born at the time of death is treated as having been born before the death (§ 1923(2) BGB).

Part V. Disclaimer and proof of heirship

An heir may disclaim the inheritance within six weeks from the time the heir learns of the inheritance and the ground on which it is based. The period is six months if the decedent’s last residence was exclusively abroad or if the heir is abroad when the period begins (§ 1944 BGB). The disclaimer is declared to the probate court (Nachlassgericht) on its record or in publicly certified form (§ 1945 BGB); an heir in the United States may have the signature certified by a notary, with an apostille, or by a German consular officer. After the period has expired, the inheritance is treated as accepted (§ 1943 BGB).

Several heirs form a community of heirs (Erbengemeinschaft). They manage the estate jointly (§ 2038 BGB) and can dispose of an individual asset only jointly (§ 2040 BGB). Each co-heir may demand partition at any time (§ 2042 BGB), and where the co-heirs cannot agree on the sale of real estate, any of them may apply for a partition auction (§ 180 ZVG).

Heirs prove their title with a certificate of inheritance (Erbschein) issued by the probate court on application (§ 2353 BGB; §§ 352 and following FamFG), or with a European Certificate of Succession (Arts. 62 to 73 of the EU Succession Regulation). The application requires a sworn declaration before a court or notary, which may be made before a German consular officer abroad. Where the decedent had no habitual residence in Germany, the court of the last German habitual residence is competent or, failing one, the Local Court of Schöneberg in Berlin (§ 343 FamFG), and the certificate may be limited to the assets located in Germany (§ 352c FamFG). Because an intestate succession cannot be proved to the land registry by a notarial will, the heirs always require a certificate of inheritance or a European Certificate of Succession to register German real estate in their names (§ 35 GBO).

Part VI. When German law applies to American families

German courts apply the EU Succession Regulation to deaths on or after August 17, 2015, and refer to the law of the decedent’s last habitual residence for the estate as a whole (Art. 21). An American citizen living in Germany therefore leaves the entire estate, including American assets, under German law in the view of German courts, unless the citizen chose the law of the relevant American state by will (Arts. 22 and 36). The American court applies its own law to real estate in its state, so that the two systems may designate different heirs for that real estate.

Where the decedent was habitually resident in an American state, the Regulation accepts that state’s reference to the law of the place where real estate lies (Art. 34(1)(a)). German real estate of a person domiciled in Maryland, Virginia, the District of Columbia or California therefore passes under German statutory succession, and the remaining estate under the law of the American domicile.

Part VII. German inheritance tax

German inheritance tax (Erbschaftsteuer) is levied on each heir’s acquisition. Tax liability extends to the worldwide estate where either the decedent or the heir is resident in Germany, German nationals abroad for no more than five years being treated as residents (§ 2(1) No. 1 ErbStG). Otherwise only German real estate and other domestic assets are taxed (§ 2(1) No. 3 ErbStG).

§§ 15, 16, 17 and 19 ErbStG, as of September 2026.

A family home in Germany or elsewhere in the European Union or the European Economic Area that the spouse or a child continues to occupy may pass free of tax, subject to a ten-year occupancy requirement and, for children, a limit of 200 square meters (§ 13(1) Nos. 4b and 4c ErbStG); a home in the United States does not qualify. Each heir must notify the tax office within three months (§ 30 ErbStG). The allowances and rates are unchanged as of September 2026.

The estate and gift tax treaty between the United States and Germany of 1980, as amended in 1998, allocates taxing rights and provides credits against double taxation. It permits the state in which real estate is located to tax it (Art. 5), and treats an individual who is a national of only one state and has been domiciled in the other for no more than ten years as generally domiciled in the state of nationality (Art. 4(3)). The treaty preserves German taxation of heirs resident in Germany, with a credit for American tax (Federal Fiscal Court, decision of September 20, 2022, II B 2/22).

Part VIII. Practical steps

1. Establish the decedent’s last habitual residence and any choice of law, which determine whether German law governs the entire estate or only the German real estate.
2. Identify the heirs by order and the law governing the spouses’ matrimonial property relations.
3. Record the disclaimer deadline and establish the solvency of the estate before it expires.
4. Apply for a certificate of inheritance or a European Certificate of Succession, and arrange the sworn declaration before a notary or a German consular officer.
5. Notify the German tax office within three months and coordinate German inheritance tax with the American estate tax under the treaty.
6. Agree among the co-heirs on the management, sale or partition of German real estate.

Conclusion

German statutory succession produces a community of heirs in almost every family with children, and the spouse’s share depends on a matrimonial property question that American families rarely consider. A will coordinated with the American estate plan, including a considered choice of law, is the principal means of avoiding both results.

How the firm helps

Ashford International Law PC advises American and German families on estate plans that coordinate German and American law, and advises heirs on the settlement of German estates, including certificates of inheritance, disclaimers and German inheritance tax. The overview of statutory succession compares Germany with the American jurisdictions in which the firm’s attorneys are licensed. Related material is available on the firm’s pages on marital property regimes, estates of US persons with non-US assets, estate planning with non-US assets and non-US decedents, and on the firm’s site on German-American estates, germanyusalawtaxfinance.com.

This page is intended for general educational purposes and does not constitute legal or tax advice, nor does it create an attorney-client relationship. The matters described depend on the specific facts, the countries and states concerned, and the law in effect at the relevant time. Statuses and figures are stated as of September 2026 and must be confirmed before any decision.