The Berlin Will – Advantages and Disadvantages for Married Couples

A Berlin will protects the surviving spouse, but it binds both partners for the future and can trigger children's compulsory-share claims. I explain when it fits and when it doesn't.

You and your spouse want to provide for each other first, and only then pass everything on to your children. The Berlin will (Berliner Testament) is the best-known way of doing this. What many people don’t realise is that it often binds the two of you far more tightly than you expect. It can also leave your children in an unfavourable position, both financially and for tax. Let me explain what really matters here.

In brief

With a Berlin will, spouses appoint each other as sole heirs. The children inherit only after the death of the second spouse (§ 2269 BGB). The advantage: the surviving partner is fully provided for and can deal with the estate freely. The drawback: the reciprocal provisions usually bind both spouses irrevocably. And the children can still claim their compulsory share when the first spouse dies. Whether a Berlin will is right for you depends on your family situation, your assets and your goals for the second death.

How I can help you

• Assessing whether a Berlin will makes sense in your situation – or whether another arrangement suits you better
• Drafting legally sound wills with the clauses you actually need (forfeiture clause for the compulsory share, appointment of final heirs, reservations allowing later change)
• Advising on the binding effect and on ways of keeping some flexibility for the future
• Assessing the compulsory-share risk and strategies for limiting it
• Reviewing and adjusting existing Berlin wills, particularly after changes in your assets or family circumstances

What a Berlin will does in legal terms

The legal basis is § 2269 BGB. In a joint will, spouses may appoint each other as heirs. Often they add a further provision: on the death of the survivor, the entire estate is to pass to a third party – usually to the couple’s children. For that situation, a statutory rule of interpretation applies in case of doubt: the third party is appointed as heir of the longer-living spouse, not as heir of the first to die. This creates a two-stage succession: first the surviving spouse inherits alone, then – on the second death – the children, as so-called final heirs.

One point is important: the children do not become heirs on the first death. Nor are they co-heirs alongside the surviving parent. When the first spouse dies, they receive nothing at that stage – in purely inheritance-law terms. That is the heart of the arrangement, and at the same time the root of the compulsory-share problem.

The binding effect – the underrated drawback

The Berlin will is a joint will containing what are known as reciprocal provisions. Under § 2270 BGB, with some provisions it is to be assumed that the spouses would not have made the one without the other. Where provisions are reciprocal in this way, the invalidity or revocation of one renders the other ineffective as well. Where the spouses appoint each other and name their joint children as final heirs, this relationship is presumed by statute (§ 2270 Abs. 2 BGB).

The practical consequence is governed by § 2271 BGB. While both spouses are alive, a reciprocal provision can only be changed jointly – by revocation recorded before a notary, or together in a new will, never unilaterally. After the death of the first spouse, the survivor’s right to revoke generally lapses entirely. They are bound by the appointment of final heirs set out in the will. This holds true even if their circumstances change completely – for example through a new relationship, a falling-out with a child, or a change in their assets. A change is then possible only in narrow exceptional cases – such as disclaiming the inheritance. Further grounds are set out in § 2294 and § 2336 BGB, comparable to the removal of a compulsory share.

Anyone who wants to preserve that flexibility must provide for it when the will is drawn up – for instance through an express reservation allowing the survivor to make changes. Without such a clause, being bound is the rule, not the exception.

The compulsory-share problem on the first death

On the death of the first spouse, the children are disinherited under the will – after all, they only inherit later, as final heirs. For that reason they are generally entitled, under § 2303 BGB, to a compulsory share against the surviving spouse. The compulsory share amounts to half the value of the statutory share of the estate and is a purely monetary claim against the estate, not a stake in the assets themselves.

This can put the surviving partner under considerable pressure. That is especially so where much of the wealth is tied up in property or in a business and there is little available cash. In practice, this risk is usually addressed with a forfeiture clause for the compulsory share. Anyone who demands their compulsory share on the first death is likewise limited to the compulsory share on the second – after the surviving parent dies. They thereby lose their entitlement to the full share as a final heir. This removes the financial incentive for children to bring compulsory-share claims early, but it does not legally prevent the claim itself.

There is a further point to bear in mind. After the first death, the estate of the first spouse passes in full to the surviving spouse and merges with their own assets. For inheritance-tax purposes you may therefore be giving away the children’s tax-free allowances, which go unused on the first death. Where larger assets are involved, this is a point you should certainly factor in.

Who a Berlin will suits

The arrangement is typically a good fit where several conditions come together. Both spouses want, above all, to provide for each other. The assets are manageable, and the children are content with the arrangement. There is also no blended-family situation involving children from earlier relationships. In such a situation the binding effect often leads to conflict: the surviving partner can no longer make different provision for their own children later on. Where larger assets or business assets are involved, or where tax optimisation is the priority, other arrangements are often more sensible commercially – for example using legacies, usufruct solutions or a staggered succession.

A typical case from practice

A middle-aged couple with two grown-up children draw up a classic Berlin will: each appoints the other as sole heir, with the children as final heirs in equal shares, and no forfeiture clause. Years later, the husband dies. One of the two children, who has just run into financial difficulty, demands the compulsory share from their mother – legally their right, but a serious rift within the family. The mother has to liquidate part of her assets to pay out the claim. That is precisely what the will was meant to prevent. Had the will contained a forfeiture clause, the child would have had to think carefully about their share on the second death. The claim itself, however, would still have existed.

Common mistakes

Many couples underestimate how firmly the binding effect really takes hold after the first death. They therefore go without a reservation allowing changes, only to miss it painfully later. Just as often there is no forfeiture clause for the compulsory share, even though it can defuse considerable potential for conflict with little effort. Some couples adopt a template from the internet without scrutiny. They fail to tailor the wording to their own family situation – for example to children from a first marriage. This later leads to disputes over interpretation. And not infrequently the will is left untouched for decades, even though assets, family circumstances or the tax framework have long since changed.

Frequently asked questions

Can I still change the Berlin will after my partner has died?

In principle, no. Under § 2271 Abs. 2 BGB, your right to revoke reciprocal provisions lapses on the death of the first spouse. A change is only possible if the will expressly provides a reservation allowing changes, or if a statutory exception applies.

Can my children claim anything despite the Berlin will when the first parent dies?

Yes. Because the children are disinherited under the will on the first death, they are entitled under § 2303 BGB to the compulsory share – half the value of the statutory share of the estate, as a monetary claim. A forfeiture clause can reduce the incentive, but it cannot rule out the claim itself.

Is a Berlin will also possible for unmarried couples?

No, not in this form. The joint will under § 2269 BGB is expressly open to spouses. Unmarried couples need other arrangements, such as individual wills with coordinated provisions or a contract of inheritance.

What happens if we later divorce?

A Berlin will generally loses its effect for the divorced spouse on divorce, unless the will provides otherwise. Do not, however, rely on this happening automatically – have your particular situation reviewed and, where appropriate, redraw the will.

Should we enter into a contract of inheritance instead of a will?

That depends on your aims. A contract of inheritance is generally even more binding than a joint will. It can, however, make sense where third parties are also to be included – for example from an earlier relationship. This can only be judged on the facts of the individual case.

Your next step

A Berlin will is not a standard solution that fits every couple equally well. The binding effect and the compulsory-share risk have to suit your family and financial situation. Otherwise the protection you intended can later become a problem – for your children or for your partner. Have your existing or planned will reviewed in an initial consultation before you commit yourself. You can find more about my services relating to wills, the compulsory share and estate planning at /en/topics/inheritance-law.

This is general information and does not replace legal advice in an individual case.

This article provides general information and is no substitute for legal advice in an individual case. Last updated: 2026-08-22.

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