A particularly frequently chosen form is the “Berliner Testament”. Here the spouses appoint each other as sole heirs and one or more third parties (usually the children) as heirs of the surviving part.
Why setup a joint spouse testament?
Spouses usually deem their assets as joint values. Therefore, they very often wish to leave all assets to the surviving partner whereas the children or third parties should benefit after death of the surviving partner. This aim can be achieved by setting up a joint spouse will which contains two wills in one document for the case of their death.
What is the “Berliner Testament”?
The „Berliner Testament“ is a joint spouse will, in which the spouses appoint each other as sole heirs and the children as subsequent heirs after death of the surviving spouse.
In principle, the assets are transferred without any restriction to the surviving spouse, who can dispose of them almost freely during his or her lifetime. According to another variant, the surviving spouse only becomes a prior heir and the children become heirs. The estate then forms a special fund which the surviving spouse can only dispose of whithin certain limits during his or her lifetime.
This can, for example, become a problem for the widow in cases of need. The advantage of this other variant, however, is that the inheritance is secured for the children (e.g. in the event of the widow remarring).
In what form can the spouse's will be drawn up?
The spouse’s will can be drawn up either by a notary or by hand. It is sufficient for one of the spouses to write down the entire text by hand and for both spouses to sign the will with place and date at the end of the text.
What risks does the „Berliner Testament“ have?
The will can develop to an inhertitance tax trap, since unnecessarily high or even avoidable tax burdens can accrue. In the case of death of the first spouse, the tax allowances of the children are not in effect. The estate transferred to the children as the final heirs is then taxed twice – namely on the death of the first and then again on the death of the second spouse! The situation escaltes further by the fact that the assets accumulate with the survivor as a result of the first inheritance and a higher tax rate then applies in the second inheritance due to tax progression.
What about compulsory portion claims?
Conversely, the mutual sole inheritance of the spouses means the disinheritance of the children in the first inheritance. After the death of the first deceased, the children can claim their compulsory portion. If the estate consists mainly of real estate, this may lead to cash flow problems with the consequence that the house may have to be sold in order to pay out the compulsory portion. This would deprive the surviving spouse of his or her livlihood. Expert advice is necessary here.
What happens if the surviving spouse remarries?
The new spouse is also entitled to a compulsory portion of the estate of the surviving spouse – solely through the marriage. This means that the assets of the first deceased can be transferred to the new spouse upon death of the second deceased. In addition, remarriage can lead to a right of recission for the surviving spouse; the dispositions contained in the spouse’s will in favour of the final heirs are thus brought to an end. This would result in the – unwanted – statutory sucession.
Can a joint spouse will be revoked?
During the lifetime of both spouses, the testamentary dispositions can be revoked by a new joint will anyway. The unilateral revocation of the spouse’s will, on the other hand, must be notarised and served on the other spouse. With the death of a spouse, the joint will becomes binding so far as the reciprocity lasts. The surviving spouse is then prevented from amending the last will or from completely redefining the succession. If he wants to do this, nevertheless (e.g. to secure a new Partner), he must reserve the possibility of alteration in the will or reject the inheritance in order to be able to dispose of his own assets elsewhere in a further will.