The Berlin will: when it fits and when it becomes a trap

What is a Berlin will?

The Berlin will is the best-known form of joint will. The spouses appoint each other as heirs and determine that, after the death of the survivor, the joint estate is to pass to third parties, usually to their children. In case of doubt, the law then assumes that the children are heirs of the spouse who dies last to the entire estate (Sec. 2269 (1) BGB).

Three terms come up again and again:

• First death: the death of the spouse who dies first.
• Survivor: the surviving spouse, who initially inherits everything.
• Final heirs: the persons who inherit after the death of the survivor, on the second death.

Only spouses can make a joint will (Sec. 2265 BGB). The rules apply accordingly to registered civil partners (Sec. 10 (4) LPartG). Unmarried couples cannot make a Berlin will.

Unity solution, separation solution, usufruct: the variants compared

Unity solution (Einheitslösung): The survivor becomes full heir. Both estates become one, and in the end the children inherit this combined estate from the survivor. This is the normal case, and it is how the law interprets a Berlin will in case of doubt (Sec. 2269 (1) BGB).

Separation solution (Trennungslösung): The survivor only becomes prior heir (Vorerbe), and the children become subsequent heirs (Nacherben) (Sec. 2100 BGB). The estate of the spouse who dies first remains a separate fund that goes to the children in the end, even if the survivor remarries.

Usufruct solution: Strictly speaking not a Berlin will, but the most important alternative: the children already inherit on the first death, and the surviving spouse receives the usufruct (Nießbrauch) as a legacy, so they may, for example, live in the house or keep the rental income.

Variant	Who inherits on the first death	Survivor's freedom of disposition	Children's compulsory share on the first death	Tax	Suitable for
Unity solution	spouse as full heir	free during lifetime, limit for gifts to the detriment of the final heirs	yes, the children are disinherited	children's allowance after the first to die goes unused	joint children, assets below the allowances
Separation solution (prior and subsequent inheritance)	spouse as prior heir, children as subsequent heirs	restricted: land only with effect until the subsequent inheritance occurs, unless exempted; gifts generally not (Sec. 2113, 2136 BGB)	yes, children can disclaim the subsequent inheritance and claim the compulsory share (Sec. 2306 (2) BGB)	as a rule no additional allowance (Sec. 6 (2) ErbStG)	blended families, protecting the assets in case of remarriage
Usufruct legacy	children as heirs, spouse receives usufruct	use yes, sell no, ownership lies with the children	usually not applicable, because the children inherit	children already use their allowances on the first death, the usufruct reduces their acquisition	larger estates, let property

With the usufruct solution, the spouse may in some circumstances disclaim the legacy and instead claim the compulsory share and equalisation of accrued gains (Sec. 2307, Sec. 1371 (2) BGB).

What do the spouse and children inherit?

On the first death, under the unity solution the surviving spouse inherits everything. The children inherit nothing. They are excluded from succession by the will and can therefore claim their compulsory share from the surviving parent (Sec. 2303 (1) BGB). If you lived in the statutory matrimonial property regime and there are two children, the compulsory share is one eighth of the estate per child. The shares for other family constellations are in the guide Compulsory share.

On the second death, the children inherit as final heirs whatever is left of the joint assets, usually in equal shares. Several children form a community of heirs that can only decide on the estate jointly. If a child has died beforehand, in case of doubt their children take their place (Sec. 2069 BGB). For the bank and the land register, the final heirs usually need a certificate of inheritance where the will is handwritten; see the guide Applying for a certificate of inheritance.

Advantages and disadvantages at a glance

Advantages	Disadvantages
The surviving spouse is provided for and can dispose of the assets.	After the first death, the survivor can usually no longer change the final heirs.
The house stays with the partner, no community of heirs with the children.	Children can claim the compulsory share on the first death, often in cash.
Possible by hand without a notary, so without costs.	The children's allowance after the first parent is lost.
One spouse cannot secretly change the joint rules.	In case of remarriage or a blended family, the assets can go to the wrong people.
Clear order: first the partner, then the children.	Errors of form and unclear clauses lead to disputes among the heirs.

Disadvantages: why the Berlin will is often the wrong choice

The Berlin will is not wrong in itself, but it often does not fit the family or the assets. Four traps are particularly common.

Binding effect after the first death

Dispositions that one spouse can be assumed not to have made without the other's disposition are mutually dependent (Sec. 2270 (1) BGB). In case of doubt, this applies if you benefit each other, or if one gives something to the other and the beneficiary, in the event of surviving, appoints a person who is related to or close to the other, such as the joint children (Sec. 2270 (2) BGB). Only appointments of heirs, legacies, testamentary directions and the choice of the applicable inheritance law can be mutually dependent (Sec. 2270 (3) BGB).

On the death of the first spouse, the right to revoke these dispositions lapses (Sec. 2271 (2) sentence 1 BGB). Example: Years later, the widow is cared for by her daughter, while her son hardly gets in touch. She writes a new will and leaves the house to her daughter. If the Berlin will states that both children are final heirs in equal shares, the new will is invalid to the extent that it adversely affects the son. There are only a few ways out: an amendment clause in the will (see the modules), disclaiming the inheritance, or misconduct by a final heir that would justify deprivation of the compulsory share (Sec. 2271 (2) sentence 2, Sec. 2294, 2336 BGB).

Tax trap: the children's lost allowances

Each child can inherit €400,000 tax-free from each parent, and the spouse €500,000 (Sec. 16 (1) nos. 1 and 2 ErbStG). With a Berlin will, the children inherit nothing from the first parent to die, and their first allowance goes unused. On the second death, they inherit the entire estate from one parent.

Example calculation (simplified): Each spouse has €800,000, and there are two children.

	Berlin will (unity solution)	Alternative: legacy of €300,000 per child on the first death
First death: spouse inherits	€800,000, taxable €300,000, tax €33,000	€200,000, tax-free
First death: children receive	nothing	€300,000 each, tax-free
Second death: per child	€783,500, taxable €383,500, tax €57,525 each	€500,000, taxable €100,000, tax €11,000 each
Total inheritance tax	€148,050	€22,000

Calculated with the allowances under Sec. 16 ErbStG and the tax rates of tax class I under Sec. 19 ErbStG, without the maintenance allowance (Sec. 17 ErbStG), without the tax exemption for the family home (Sec. 13 (1) nos. 4b and 4c ErbStG), and without estate costs and prior gifts. The family home in particular can change the calculation considerably. If a child claims the compulsory share on the first death, it uses its allowance to that extent, and the spouse can deduct the compulsory share as a debt (Sec. 10 (5) no. 2 ErbStG). If the final heirs are more closely related to the first to die than to the survivor, for example the first spouse's nieces and nephews, the relationship to the first to die is used on application, to the extent that the survivor was bound and the first spouse's assets are still present on the second death (Sec. 15 (3) ErbStG).

The children's compulsory share on the first death

The compulsory share is a monetary claim that falls due on death. If the assets are tied up in the house, the survivor has to use savings, a loan or a sale. A deferral is only possible within narrow limits; details in the guide Compulsory share.

Remarriage and blended families

If the survivor remarries, the new spouse becomes entitled to a compulsory share and can claim it from the final heirs on the second death, including from the assets of the first to die. In blended families, stepchildren have neither a right of inheritance nor a compulsory share against the step-parent. Without a precise rule on the final heirs, the children of the first to die may end up with nothing. Here, the separation solution or a remarriage clause is often a better fit.

Compulsory share despite a Berlin will: penalty clause with example calculation

Many Berlin wills contain a compulsory share penalty clause (Pflichtteilsstrafklausel): anyone who claims the compulsory share on the first death is also to receive only the compulsory share on the second death. In the automatic variant, disinheritance occurs by itself; in the optional variant, the survivor may decide whether to disinherit the child. It also matters whether merely claiming or only receiving the compulsory share triggers the clause.

Example calculation: The father dies first and leaves €300,000. The mother has her own assets of €200,000. The parents lived in the statutory matrimonial property regime, and there are two children, Lea and Jonas. The compulsory share per child is one eighth, i.e. €37,500. Lea claims it, Jonas does not. The penalty clause limits Lea to the compulsory share on the second death, which is then one quarter.

	Scenario 1: mother's assets are preserved	Scenario 2: care costs of €412,500
Mother's assets after payment to Lea	€462,500	€462,500, still €50,000 at death
Lea: compulsory share on the first death	€37,500	€37,500
Lea: compulsory share on the second death (1/4)	€115,625	€12,500
Lea in total	€153,125	€50,000
Jonas as final heir	€346,875	€37,500
For comparison without a compulsory share claim, per child	€250,000	€43,750

If the assets are preserved, Lea loses almost €100,000 by making the claim. If they are used up by care costs, she is even better off with the compulsory share than without it. The penalty clause therefore only deters if enough assets remain until the second death. Anyone who wants to prevent this can combine the clause with legacies to the children who do not claim a compulsory share. For the children: the compulsory share becomes time-barred three years after the end of the year in which they learn of it, so a decision does not have to be made immediately.

Modules: clauses that make a Berlin will better

We deliberately do not provide a complete template to copy here, because every family needs different rules. The following modules show which questions a good Berlin will answers. The example sentences are wording aids, not a template.

1. Mutual appointment of heirs and final heirs: "We appoint each other as sole heirs. The heirs of the survivor are our children [name] and [name] in equal shares." Without the final heirs, it is not a Berlin will, and intestate succession then applies after the second death.
2. Substitute final heirs: "If a child has died before the survivor, their descendants take their place according to the rules of intestate succession." In case of doubt, this already applies under Sec. 2069 BGB, but stating it expressly is clearer.
3. Clarifying mutual dependence: "The mutual appointment of heirs is mutually dependent. The appointment of the final heirs is not mutually dependent." In this way, you decide yourselves what is binding after the first death, instead of letting the rule of doubt in Sec. 2270 (2) BGB apply.
4. Amendment clause: "The survivor may freely provide for a different succession after their death among our joint descendants." It gives the survivor room for manoeuvre, for example if one child provides care.
5. Compulsory share penalty clause: "If, after the death of the first to die, a child claims their compulsory share against the will of the survivor, they and their descendants are also limited to the compulsory share after the death of the survivor." Decide deliberately whether the consequence occurs automatically and whether merely claiming is enough.
6. Remarriage clause: "If the survivor remarries, our children immediately receive a legacy in the amount of their statutory share of the inheritance after the first to die." It protects the assets of the first to die for the children.
7. Simultaneous death: "If we die simultaneously or shortly after one another as a result of the same event, our children are deemed to be our heirs in equal shares." Without such a rule, it is often unclear who inherited from whom.

A complete template will follow in a separate guide.

How to make a Berlin will: by hand or before a notary

By hand: One of you writes the entire will by hand and signs it. The other signs as well and should state the day, month, year and place of their signature (Sec. 2267 BGB). A text written on a computer is invalid, even if both sign. All formal requirements, safekeeping at the local court and the costs are in the guide Writing a will.

Before a notary: The notary advises, drafts and notarises. A joint will incurs a 2.0 fee (no. 21100 of the schedule of costs of the GNotKG, Table B), in each case plus expenses and VAT. The transaction value is the assets; debts are deducted, but only up to half of the assets (Sec. 102 (1) GNotKG).

Assets (transaction value)	Notary fee for a joint will
€200,000	€870
€400,000	€1,570
€800,000	€2,830

A notarial will has an advantage that partly offsets the costs: with the will and the record of opening, the heirs can usually have the land register corrected without a certificate of inheritance (Sec. 35 (1) GBO).

Typical mistakes with a Berlin will

Mistake	Consequence	How to avoid it
Will written on a computer	invalid	entire text by hand by one spouse (Sec. 2267 BGB)
Only one spouse signed	no joint will	both sign, with place and date
Made while unmarried	invalid as a joint will (Sec. 2265 BGB)	contract of inheritance before a notary (Sec. 2276 BGB) or individual wills
No final heirs named	intestate succession after the second death	name final heirs and substitute final heirs
No amendment clause	survivor cannot react to care needs or disputes	include a reservation of amendment
Unclear penalty clause	dispute over whether and when a child is disinherited	define the trigger and consequence unambiguously
Assets above the allowances	avoidable inheritance tax	consider legacies to children on the first death
Remarriage not provided for	new spouse receives a compulsory share from the joint assets	remarriage clause or separation solution
No provision for simultaneous death	unclear succession	rule for simultaneous death

Changing, revoking, contesting

Jointly, as long as you are both alive: You can change or cancel the will jointly at any time, for example with a new joint will.

Unilaterally, as long as you are both alive: One of you alone can only revoke mutually dependent dispositions by a notarised declaration to the other (Sec. 2271 (1) sentence 1, Sec. 2296 BGB). A secret new will is not enough (Sec. 2271 (1) sentence 2 BGB). If one spouse revokes their disposition, the other's mutually dependent disposition becomes invalid (Sec. 2270 (1) BGB).

After the first death: The right of revocation lapses. The survivor can then only cancel their own disposition if they disclaim what was given to them (Sec. 2271 (2) sentence 1 BGB). The time limit for this is usually six weeks (Sec. 1944 BGB); details in the guide Disclaiming an inheritance.

Contesting: A will can be contested if the testator was mistaken (Sec. 2078 BGB) or passed over a person entitled to a compulsory share who did not yet exist or was unknown to them when the will was made (Sec. 2079 BGB), for example a new spouse after remarriage. Third parties must contest within one year of learning of the ground for contesting (Sec. 2082 BGB). If the survivor wants to contest their own binding disposition, the rules for the contract of inheritance apply accordingly: a one-year time limit and notarisation (Sec. 2281 to 2283 BGB).

Divorce and separation: what happens to the will

If the marriage is dissolved by divorce, the joint will is invalid in its entirety (Sec. 2268 (1) BGB). The same already applies before the divorce if, on the death of one spouse, the requirements for divorce were met and the deceased had applied for it or consented to it. Dispositions only remain valid to the extent that it can be assumed you would have made them for this case as well (Sec. 2268 (2) BGB), for example the appointment of the children.

Mere separation changes nothing about the will. Anyone who no longer wants to be bound by the will after separating must revoke it before a notary.

Selling the house despite a Berlin will

Under the unity solution, the survivor is full heir. They may sell the house and live on the money, and the final heirs cannot prevent this. If, however, they give away assets with the intention of disadvantaging the final heirs, the latter can reclaim the gift from the recipient after the survivor's death.

Under the separation solution, the survivor is only prior heir. If they sell land from the estate, the sale becomes invalid when the subsequent inheritance occurs, to the extent that it adversely affects the subsequent heirs (Sec. 2113 (1) BGB). The will can exempt them from this (Sec. 2136 BGB), but not from the prohibition of gratuitous dispositions (Sec. 2113 (2) BGB). Under the usufruct solution, the house belongs to the children, and only they can sell it.

When the Berlin will does not fit

If you have answered yes to one or more questions, a simple Berlin will is probably not the best solution. Alternatives are individual wills, a contract of inheritance before a notary, the usufruct solution, lifetime gifts or a notarised waiver of the compulsory share by the children (Sec. 2346, 2348 BGB). Which solution fits depends on the individual case.