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Back to Inheritance Laws in the 19th and 20th Centuries

Summary

During the nineteenth century, German inheritance law was splintered into many territorial regimes that combined Germanic principles with the Roman law, as it was received in Germany from the sixteenth century onward.  Throughout the nineteenth century, special succession regimes for the nobility and for the peasantry were in effect.  Of these, some German state laws on the succession of farms by the entirety are still in effect today.  Current German inheritance law was enacted in the Civil Code of 1896.  It is based on classical Roman law while also containing some institutions of Germanic origin.

I.  Introduction

Until 1900, the effective date of the German Civil Code, the numerous German principalities had their own laws of inheritance.  These were either based on statutory or customary law, but in any event they were rooted in Roman law as it was received since the sixteenth century, in Germany[1] in the form of the European jus commune (gemeines Recht, common law) often under the influence of the earlier reception of Roman law in Italy and France.[2]  Yet, despite the unifying influence of the underlying Roman law, the various German laws featured certain peculiarities that originated from Germanic law.[3]

In the nineteenth century, German law was not only fragmented by different territorial laws and different interpretations of the Roman-based jus commune, but also by special succession regimes for the nobility and the peasantry.  Of these, the entailed estates of the nobility were abolished in the 1930s[4] whereas laws to prevent the splintering of farms are still in effect today in some of the German states.[5]

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II.  Territorial Systems of the Nineteenth Century

Among the influences of German law that infiltrated the received Roman law of the jus commune were slight preferences for intestate succession over testamentary succession,[6] the permissibility of succession agreements inter vivos,[7] joint wills of spouses, and the institution of the executor.[8]  Many of the German customary or written laws also diverged from the Roman law ranking of intestate heirs.  All the territorial regimes upheld the principle that closer relatives precluded more distant relatives from inheriting while relatives of the same degree of relationship shared the estate equally,[9] yet the often complex regimes differed from each other in various ways.[10]

Some modernization and streamlining of the principles of inheritance law occurred in the major codifications of the nineteenth century.  Comprehensive systems of inheritance law were contained in the General Code of Prussia of 1794,[11] the Civil Code of Saxony of 1865,[12] and the Austrian Civil Code.[13]  Of these, the Austrian Code was the most concise and cogent.  It was influenced by natural law, the thinking of the age of reason, and the French Civil Code.[14]

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III.  Succession Under the Civil Code

German inheritance law was first unified in the German Civil Code of 1896.[15]  It became effective on January 1, 1900, for the German Reich as it existed in 1871,[16] while in Austria, which did not become part of the German Reich, the Austrian General Civil Code has continued in existence until now.  The German Civil Code is also currently in effect, and the provisions on succession have undergone few changes since their original enactment, the most important of which were increases in spousal inheritance rights in 1957, the extension of intestate succession rights to children born out of wedlock in 1969 and 1997, and the granting of inheritance rights to same-sex partners in 2001.[17]

The succession law of the German Civil Code is based on a mixture of Germanic law and classical Roman law,[18] yet it was also shaped by the changed social circumstances of the outgoing nineteenth century under which urban populations increased and land ownership became less important, while extended families declined in favor of nuclear families—in particular spouses.  The balance between these influences is shown in the treatment of testamentary freedom, which is a guiding principle of the Code while being tempered by compulsory portions to which some intestate heirs are entitled.  The importance of the spouse is reflected in the granting of intestate succession rights as well as compulsory portion rights. 

In the ranking of intestate heirs the Civil Code places descendants of the decedent in the first group, his or her parents and their descendants in the second group, grandparents and their descendants in the third group, and so on.  Within each group, the heirs of the nearest generation preclude farther removed relatives.  Those of the same generation inherit per stirpes, which means that the share of a predeceased member of the group devolves upon his or her issue by whom it is shared.[19]

The principle of universal succession, whereby an estate automatically vests in the heirs when the decedent dies without need of an executor, has been described as a characteristic feature of German inheritance law.  In such cases, the heir or heirs are liable for the debts of the estate and for handing over any compulsory portions and bequests.[20]

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IV.  Special Regimes for the Nobility

In Germany, the nobility retained the privilege of leaving their estate entailed (Fideikomiss) throughout the nineteenth century, even though the issue was hotly debated.[21]  In fact, the institution of the entailed estate was only abolished in 1939.[22]  The German version of the entailed estate allowed the decedent to bind the estate for generations by providing the order of succession, usually by insisting that the estate could not be partitioned and that it had to go to a male descendant or other relative.[23]

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V.  Special Regimes for the Peasantry

Rules of succession that forestalled the partition of farms between multiple heirs date back to Germanic times.  They continued throughout the nineteenth century,[24] and still exist today.[25]  The Introductory Code to the Civil Code allows succession of farmland to be governed by state law,[26] and half of the German states still have such laws today.  These laws provide that by operation of law or by declaration of the owner, farms of a certain size may not be partitioned among multiple heirs but have to be left to one heir who in turn has to compensate the other heirs.[27]

Until 1963, the farm succession laws contained strong preferences for male heirs, even though the Basic Law, the West German Constitution of 1949, prohibited sex discrimination.[28]  In a landmark decision of 1963 the Federal Constitutional Court held that preferences for male heirs in these laws were unconstitutional,[29] and they now grant equal rights to male and female heirs.[30]

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Prepared by Edith Palmer
Chief, Foreign, Comparative, and International Law Division II
March 2015


[1] Hans Planitz, Deutsches Privatrecht 233 (3rd ed. 1948).

[2] Franz Wieacker, A History of Private Law in Europe 114 (Tony Weir trans., 1995).

[3] Thomas Gergen, Die gesetzliche Erbfolge einschliesslich des gesetzlichen Erbrechts des Staates und seine Bezüge zum Römischen Recht, Zeitschrift für die Steuer- und Erbrechtspraxis (Zerb) 371 (2008).

[4] Otto Palandt, BÜRGERLICHES Gesetzbuch § 2009 n.1 (70th ed. 2011).

[5] Planitz, supra note 1, at 235.

[6] According to a legal maxim, the decedent would die in peace if he left his estate to the rightful heirs.  See Planitz, supra note 1, at 228. 

[7] Thomas Gergen, Der späte Wegfall der Ungleichbehandlung der Geschlechter im Landwirtschaftlichen Erbrecht, Zerb 225 (2010).

[8] Helmut Coing, 2 Europäisches Privatrecht 596 (1985).

[9] Planitz, supra note 1, at 231. 

[10] Coing, supra note 8.

[11] Allgemeines Landrecht für die preussischen Staaten, June 1, 1794, pt. II, tit. 2, chs. 5 & 6, and tit. 9, ch. 8, German text available at http://www.koeblergerhard.de/Fontes/ALR1fuerdiepreussischenStaaten1794teil1.htm.

[12] Das Bürgerliche Gesetzbuch für das Königreich Sachsen, Jan. 2, 1863, §§ 354–456, reprinted in Bernhard Francke, Das Bürgerliche Gesetzbuch für das Königreich Sachsen (1892).

[13] Allgemeines bürgerliches Gesetzbuch [General Civil Code], June 1, 1811, Jutizgesetzsammlung No. 946/1816, §§ 531–824.

[14] Wieacker, supra note 2, at 268.

[15] Bürgerliches Gesetzbuch [Civil Code] Aug. 18, 1896, Reichsgesetzblatt 195, §§ 1922–2382, translation of current version available at http://www.gesetze-im-internet.de/englisch_bgb/index.html.

[16] Verfassung des Deutschen Reichs, Apr. 16, 1871, Reichsgesetzblatt 64.

[17] Dirk Olzen, Erbrecht 18–22 (2012).

[18] Gergen, supra note 3, at 371.

[19] E.J. Cohn, 1 Manual of German Law 260 (1968).

[20] Gerhard Robbers, An Introduction to German Law 295 (2006).

[21] Coing, supra note 8, at 613.

[22] Palandt, supra note 4, § 2009 n.1.

[23] Planitz, supra note 1, at 235.

[24] Id. at 236.

[25] Gergen, supra note 7.

[26] Einführungsgesetz zum Bürgerlichen Gesetzbuch [Introductory Code to the Civil Code], Aug. 18, 1896, Reichsgesetzblatt 604 § 64, translation of current version available at http://www.gesetze-im-internet.de/englisch_bgbeg/index.html.

[27] Gergen, supra note 7.

[28] Grundgesetz für die Bundesrepublik Deutschland [Basic Law], May 23, 1949, Bundesgesetzblatt 1  art. 3(1), available in translation at http://www.gesetze-im-internet.de/englisch_gg/index.html.

[29] Bundesverfassungsgericht [Federal Constitutional Court] Mar. 20, 1963, 15 BVerfGE 337.

[30] Gergen, supra note 3.

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Last Updated: 06/09/2015