{"id":1550,"date":"2025-07-31T10:54:05","date_gmt":"2025-07-31T08:54:05","guid":{"rendered":"https:\/\/scharfrechtsanwaelte.notarwebsite.de\/?p=1550"},"modified":"2026-01-15T12:05:54","modified_gmt":"2026-01-15T11:05:54","slug":"berliner-testament-universalloesung-oder-risiko","status":"publish","type":"post","link":"https:\/\/www.scharfrechtsanwaelte.de\/en\/berliner-testament-universalloesung-oder-risiko\/","title":{"rendered":"Berlin will: universal solution or risk?"},"content":{"rendered":"<h2>What is a Berlin will?<\/h2>\nThe 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.<br \/>\nThe purpose of this arrangement is to provide for the surviving spouse\u2014for example, by ensuring they retain the shared home or the entire estate. Particularly in long-term marriages, the \u201cBerlin will\u201d seems to many couples to be the simplest and safest solution. But as straightforward as this arrangement may seem, the legal and tax pitfalls\u2014which are often overlooked in practice\u2014are serious.\n<h2>Advantages of the Berlin will<\/h2>\n<p>The Berlin will offers various advantages:<\/p>\n\t<ul>\n\t\t<li>\t\t\n\t\t\t\t<img decoding=\"async\" src=\"https:\/\/www.scharfrechtsanwaelte.de\/wp-content\/uploads\/2025\/07\/sharf-right-icon.png\" alt=\"sharf-right-icon\" title=\"sharf-right-icon\" itemprop=\"image\"\/>\n\t\t<p>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.<\/p><\/li><li>\t\t\n\t\t\t\t<img decoding=\"async\" src=\"https:\/\/www.scharfrechtsanwaelte.de\/wp-content\/uploads\/2025\/07\/sharf-right-icon.png\" alt=\"sharf-right-icon\" title=\"sharf-right-icon\" itemprop=\"image\"\/>\n\t\t<p>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.<\/p><\/li><li>\t\t\n\t\t\t\t<img decoding=\"async\" src=\"https:\/\/www.scharfrechtsanwaelte.de\/wp-content\/uploads\/2025\/07\/sharf-right-icon.png\" alt=\"sharf-right-icon\" title=\"sharf-right-icon\" itemprop=\"image\"\/>\n\t\t<p>Simple structure: Mutual appointment as heirs with a final inheritance arrangement for the children is legally uncomplicated and understandable for many people.<\/p><\/li>\t<\/ul>\n\t<h2>The risks: compulsory portion law and tax traps<\/h2>\n<h3>Children's claims to a compulsory portion<\/h3>\nWhat many people don't realize is that, under a Berlin will, the children are disinherited upon the first death\u2014and can therefore claim their statutory share. This amounts to half of the statutory inheritance and must be paid out in cash.<br \/>\nExample: 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.\n<h3>Inheritance tax disadvantages<\/h3>\n<p>Another disadvantage relates to inheritance tax: in the case of the first inheritance, only the surviving spouse inherits. The children's tax-free allowances (\u20ac400,000 per child and parent) remain unused.<\/p>\n<p>Only in the event of a second inheritance\u2014when the estate is then passed on to the children\u2014can the tax exemption be claimed only against the estate of the most recently deceased person. This often results in a higher tax burden, particularly in the case of larger estates, real estate holdings, or business assets.<\/p>\n<h3>Binding effect of the will<\/h3>\n<p>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.<\/p>\n<h2>Design options to minimize risk<\/h2>\n<h3>Mandatory portion penalty clauses and reservations of amendment<\/h3>\n<p>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.<\/p>\n<p>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.<\/p>\n<h3>Super legacy for the use of tax allowances<\/h3>\n<p>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.<\/p>\n<p>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.<\/p>\n<h2>Conclusion: Design with a sense of proportion\u2014don't trust blindly<\/h2>\n<p>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.<\/p>\n<p>Anyone who wants to avoid disputes and tax pitfalls should opt for professional drafting. Through customized provisions\u2014such as penalty clauses, reservations of the right to amend, or a \u201csuper bequest\u201d\u2014the Berlin will can be tailored to an individual\u2019s personal circumstances\u2014in a legally sound, flexible, and tax-optimized manner.<\/p>\n\t\t\t\t\t\t<h3>Can our children claim their statutory share after the first death\u2014and how can this be avoided?<\/h3>\n\t\t\t<p>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.<\/p>\n\t\t\t\t\t\t<h3>Do we make optimum use of the inheritance tax allowances with a Berlin will?<\/h3>\n\t\t\t<p>With a Berlin will, the inheritance tax allowances are not optimally utilized. The inheritance tax allowances for the children after the spouse who dies first remain unused. These would amount to \u20ac400,000.00 per child, which could also be inherited tax-free by the children.<\/p>\n\t\t\t\t\t\t<h3>Should our will be supplemented by flexible clauses or a super legacy?<\/h3>\n\t\t\t<p>Supplementing the classic Berlin will with additional clauses in the event of the assertion of compulsory portion claims and the addition of a super legacy is advisable in many cases.<\/p>\n\t<h3>Contact person<\/h3>\n<h2>\n\t\t<a href=\"https:\/\/www.scharfrechtsanwaelte.de\/en\/anwaelte\/jan-hindahl\/\" title=\"Jan Hindahl\" target=\"_self\">\n\t\tJan Hindahl\n\t\t<\/a>\n\t<\/h2>\n\t<p>Lawyer and notary, specialist lawyer for inheritance and tax law<\/p>\n\t Please contact <b>Maike Vakulenko<\/b>to make an appointment for an initial consultation.","protected":false},"excerpt":{"rendered":"<p>What is a \u201cBerliner Testament\u201d? The \u201cBerliner Testament\u201d is a popular form of joint will for spouses. In it, the spouses name each other as sole heirs. The children or other heirs only inherit after the death of the surviving spouse and generally become what are known as \u201cresidual heirs.\u201d The purpose of this arrangement is to provide for the surviving spouse\u2014\u2026<\/p>","protected":false},"author":5,"featured_media":2490,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-1550","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-allgemein"],"_links":{"self":[{"href":"https:\/\/www.scharfrechtsanwaelte.de\/en\/wp-json\/wp\/v2\/posts\/1550","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.scharfrechtsanwaelte.de\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.scharfrechtsanwaelte.de\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.scharfrechtsanwaelte.de\/en\/wp-json\/wp\/v2\/users\/5"}],"replies":[{"embeddable":true,"href":"https:\/\/www.scharfrechtsanwaelte.de\/en\/wp-json\/wp\/v2\/comments?post=1550"}],"version-history":[{"count":0,"href":"https:\/\/www.scharfrechtsanwaelte.de\/en\/wp-json\/wp\/v2\/posts\/1550\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.scharfrechtsanwaelte.de\/en\/wp-json\/wp\/v2\/media\/2490"}],"wp:attachment":[{"href":"https:\/\/www.scharfrechtsanwaelte.de\/en\/wp-json\/wp\/v2\/media?parent=1550"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.scharfrechtsanwaelte.de\/en\/wp-json\/wp\/v2\/categories?post=1550"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.scharfrechtsanwaelte.de\/en\/wp-json\/wp\/v2\/tags?post=1550"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}