Berlin will: universal solution or risk?

July 31, 2025

What is a Berlin will?

The Berlin will is a popular form of joint will for spouses. In it, the spouses appoint each other as sole heirs. The children or other heirs only become heirs after the death of the longer-living spouse, usually so-called final heirs.
The aim of this arrangement is to protect the surviving spouse - for example by preserving the joint house or the entire estate. For many married couples, the Berlin will appears to be the simplest and most secure solution, especially in long-term marriages. However, as clear as the arrangement may seem, there are serious legal and tax pitfalls that are often overlooked in practice.

Advantages of the Berlin will

The Berlin will offers various advantages:

Protection of the spouse: The surviving spouse becomes the sole heir and can regularly dispose freely of the assets. This is particularly important if real estate or company shares are included in the estate.
Avoidance of joint heirs: The children only become heirs after the death of both parents. This avoids disputes between co-heirs at the first inheritance.
Simple structure: Mutual appointment as heirs with a final inheritance arrangement for the children is legally uncomplicated and understandable for many people.

The risks: compulsory portion law and tax traps

Children's claims to a compulsory portion

What many people don't consider is that the children are disinherited by the Berlin will when they first inherit - and can therefore claim their compulsory portion. This amounts to half of the statutory inheritance share and must be paid out in cash.
Example: If a spouse dies and leaves behind a spouse and two children, each child is entitled to a compulsory portion of 1/8 of the estate. This can place a considerable financial burden on the surviving spouse, especially if there is insufficient liquidity and, for example, the family home is affected.

Inheritance tax disadvantages

Another disadvantage relates to inheritance tax: in the case of the first inheritance, only the surviving spouse inherits. The children's tax-free allowances (€400,000 per child and parent) remain unused.

Only on the second inheritance - when the assets pass to the children - can only the tax-free amount be claimed from the last deceased person. This often leads to higher tax burdens, especially for larger estates, real estate or business assets.

Binding effect of the will

After the death of a spouse, the surviving partner can generally no longer unilaterally change the Berlin will. This leads to a lack of flexibility, for example in the event of a change in family circumstances (e.g. discord with a child) or a new marriage.

Design options to minimize risk

Mandatory portion penalty clauses and reservations of amendment

A common arrangement for avoiding claims to a compulsory portion is the compulsory portion penalty clause. This stipulates that children who claim their compulsory portion after the first inheritance are also disinherited in the second inheritance or only receive the compulsory portion. This is intended to prevent them from immediately burdening the surviving parent financially. However, this must also be precisely formulated so that the unintentional assertion of claims under compulsory portion law is excluded, but the intentional assertion does not exclude the child concerned from the succession.

In addition, a power of amendment for the surviving spouse can be agreed. This allows the surviving spouse to amend the will retrospectively if a child demands the compulsory portion. This creates more room for maneuver to react to family developments.

Super legacy for the use of tax allowances

The so-called super legacy is an arrangement that allows the surviving spouse to give specific assets to the children after the first inheritance without them being appointed as heirs. This means that the children's tax-free allowances can also be used in the first inheritance, which can significantly reduce the tax burden.

What is important is that the surviving spouse is free to decide whether, when and to what extent he or she wishes to fulfill the bequest. This offers flexibility and tax advantages, but requires careful wording in the will.

Conclusion: Design with a sense of proportion - don't trust blindly

The Berlin will is not a universal solution, but a solution with advantages and disadvantages that must be weighed up individually. Without clever additions, it can lead to claims for a compulsory portion, high inheritance tax and limited testamentary freedom.

If you want to avoid disputes and tax traps, you should rely on professional drafting. Tailor-made clauses such as penalty clauses, reservations of amendment or a super legacy allow the Berlin will to be adapted to the personal life situation - legally secure, flexible and tax-optimized.

Can our children demand compulsory portions after the first inheritance - and how can this be avoided?

If the children are disinherited in the first inheritance case, they can assert their claim to a compulsory portion in the event of the death of the first parent. This possibility can be made less attractive by means of a so-called compulsory portion penalty clause. With a compulsory portion penalty clause, the assertion of a claim to a compulsory portion leads to disinheritance in the event of the death of the surviving spouse.