Does the separated wife inherit?

The sweeping and often quoted claim with which separation of spouses, the surviving spouse's right of inheritance is excluded or continues to exist, is not very appropriate. The legal regulation is more complex.

Wife remains the legal heir of close relatives

• The wife who is separated from her spouse inherits without any problems if a relative dies to whom she is herself related. As a parent, she is the legal heir of the second order.
• If a child dies, the wife is the legal heir of the child along with the spouse and siblings, provided that the child does not yet have any children of its own.
• Regardless of inheritance law, in the event of divorce, the equalization of profits is to be assessed.

When the partner dies, the other inherits

• If, on the other hand, the spouse dies, § 1933 BGB regulates the spouse's inheritance law. If the partners lived separately, the wife's statutory right of inheritance continues to exist. If the spouse applies for the divorcethe situation changes.


Applying for a divorce in the year of separation - what you should consider

Divorce rates have increased. But who makes the decision to finally ...

• According to this, the separated and surviving wife does not inherit anything if at the time of the death of the partner the The prerequisites for the divorce of the marriage were met and the spouse (testator) applies for the divorce or the latter had agreed. This rule, which is actually easy to understand, is nevertheless complicated.
• The separated wife only does not inherit if the spouse's application for divorce was well founded. To do this, the requirements for divorce must have been met. Proof that the marriage has failed is a prerequisite for filing for divorce. The marriage is therefore deemed to have failed if the spouses have lived apart for at least one year (§§ 1565 ff BGB).

The divorce petition of the separated partner prevents inheritance law

• A further prerequisite is that the spouse (testator) applied for a divorce or consented to the wife's application for divorce before his death. For this, the application must have been served on the wife by the court.
• The spouse's consent to the wife's application for divorce must be formally recorded in the registry or in a oral hearing for the record of the court or in a brief of the authorized lawyer be.
• If, on the other hand, the separated and surviving wife has applied for divorce without the spouse having consented to the application for divorce, her statutory right of inheritance remains intact. However, the deceased spouse can prevent the right of inheritance by disposing of them upon death.

The background to the legal regulation is that the testator, the consequences of the failure of his marriage wants to move, to exclude his spouse from participating in his property and his estate would like to. However, the statutory spouse inheritance law should not depend on chance as to whether the spouse (testator) dies before or after a divorce judgment has become final. It is therefore sufficient to send a substantiated application for divorce.