The Berliner Testament – a good idea or not?

This article describes the legal position under German law. The Berliner Testament is a specific German instrument and has no direct equivalent in other jurisdictions.

A married couple wants to ensure the surviving partner „gets everything“ – the house, the savings, no disputes with the children. They appoint each other as sole heirs in a Berliner Testament. Tax allowances go unused. Years later one of them dies, and suddenly a child demands their compulsory share in cash – the surviving spouse has to sell the family home to pay it out. What was well intended becomes a trap.

I. What is a Berliner Testament in legal terms?

The Berliner Testament is a joint will made by spouses or registered civil partners under section 2269 BGB. The core arrangement: each appoints the other as sole heir, and the shared children only inherit on the death of the second spouse (as final heirs under section 2100 BGB). Statutory succession – under which the children would inherit immediately – is deliberately excluded. The binding effect under section 2271 BGB means that after the first death the survivor generally cannot change the arrangements they made together.

II. Common mistakes and misconceptions

1. „The children get nothing while both parents are alive“

Wrong. After the first death the children are entitled to their compulsory share (Pflichtteil, section 2303 BGB) – half of their statutory share, payable immediately in cash. With an estate worth €500,000 and two children, each child can demand €62,500 – often threatening the survivor’s financial position.

2. „We can adjust the will later“

Only while both are alive. After the first death the survivor is bound by the joint disposition (section 2271(2) BGB). Even if circumstances change – remarriage, conflict with children, a new property – the old arrangement stands.

3. „It makes no difference for tax“

A serious misconception. Under a Berliner Testament the children’s allowance on the first death (€400,000 per child and parent) goes unused. If a child then inherits €800,000 on the second death, inheritance tax falls due on €400,000 – avoidable with careful structuring.

4. „A handwritten will is always enough“

In principle yes (section 2247 BGB), but: with complex assets, property or business holdings, drafting errors lead to years of litigation. Vague terms such as „everything“, or a missing date or signature, invite disputes.

5. „A Berliner Testament protects against the children’s new partners“

Only to a limited extent. The children do inherit only on the second death, but the compulsory share claim can be inherited and pledged. If a child dies before the surviving parent, that child’s descendants – or, if childless, possibly their spouse – inherit.

III. Concrete steps

1. Review assets and liquidity

Draw up a list: property, accounts, securities, insurance. The key question: could the survivor pay any compulsory share claims in cash without selling assets? With property-heavy estates in particular, a liquidity squeeze is likely.

2. Agree a waiver of the compulsory share

Have the children waive their compulsory share claims on the first death before a notary (section 2346 BGB). Common consideration: a settlement payment, a lifetime gift or a guaranteed larger share as final heir. It binds everyone involved but creates planning certainty.

3. Use tax allowances – consider a super-legacy

In addition to their position as final heirs, have your children receive a legacy that uses up the allowance (€400,000) – securities or an apartment, for example. The surviving spouse retains a usufruct or right of residence. The children then pay considerably less tax on the second death.

4. Include a remarriage clause

Set out what happens if the survivor remarries. Options: the children’s reversionary interest takes effect immediately (section 2100 BGB), an obligation to pay out specific amounts, or the binding effect ends entirely. This prevents a new spouse inheriting family assets.

5. Get professional advice

Have the will reviewed or drafted by a lawyer. Where assets exceed €500,000 or business holdings are involved, a tax adviser should also be brought in to avoid an unnecessary tax burden.

IV. What you should do now

The Berliner Testament is not a universal solution – for some couples it fits, for others it becomes an expensive mistake. What matters is your individual asset situation, your relationship with your children and your overall tax position.

Arrange an appointment for inheritance law advice. We analyse your assets, calculate the concrete tax burden and compulsory share risks, and develop a tailored succession arrangement – whether a Berliner Testament with optimisations, a spousal will with reversionary heirs, or alternative structures using lifetime gifts.