The Berlin Will - Can I Still Change It After My Spouse Dies?

The surviving spouse wants to revisit the succession set out in a Berlin will - to remarry, favour one child, or settle a dispute. What the law allows, and what it does not.

Your spouse has died. Your joint will names you as sole heir. Now you realise that the succession you both settled on all those years ago for the children no longer fits. Perhaps one child has drifted away, perhaps you have remarried, perhaps a grandchild has come along. And almost invariably, the first question is the same: am I now free to simply change the will?

In short

In most cases: no, not without further ado. Once the first spouse dies, you are bound by the mutually dependent provisions of the joint will - above all by the appointment of the ultimate heirs. A later will may depart from this, but to that extent it is invalid. There are, however, genuine ways out of this binding effect - if you use them in good time and correctly. And there are cases in which a clause in the will itself expressly permits a change.

How I can help you

• I examine your particular will: which provisions are mutually dependent and which are not - and what that means for the change you have in mind?
• I tell you whether an existing clause (“free disposal”, an opening clause, a reservation of the right to amend) genuinely gives you room to manoeuvre.
• I assess whether and how disclaiming the inheritance, a waiver of inheritance rights by the ultimate heirs, or a challenge might work in your situation - including the financial consequences.
• If you are both still living, I draft an opening clause for you. That way, this problem never arises in the first place.
• Where a dispute has already broken out, I represent you against the ultimate heirs and, if necessary, before the probate court.

I have already explained the legal foundations of the Berlin will - the appointment of a sole heir, the ultimate heirs, and the compulsory-portion penalty clause - in my article The Berlin Will: Advantages and Disadvantages. Here I deal with the special situation that arises after the first death.

Why the will binds you now

A joint will made by spouses may contain provisions that the law describes as “mutually dependent” (wechselbezüglich). One spouse made their provision only because the other made a particular corresponding one. The classic example: “We appoint each other as sole heir, and on the death of the survivor our children inherit.” The law expressly presumes this mutual dependence in one situation: where the spouses benefit each other and, for the event of surviving, a person is benefited who is related to the other spouse or otherwise close to them. Typically, these are the couple’s own children as the ultimate heirs.

While both spouses are living, a mutually dependent provision can be revoked only under strict conditions. The same conditions apply to withdrawal from a contract of inheritance: notarial recording and a declaration made to the other spouse. On the death of the first spouse, this right of revocation on the part of the survivor lapses entirely. The survivor can then set aside their own provision only by disclaiming what was left to them - more on that below.

An important point in practice: not every clause in the will is automatically mutually dependent. Legacies to third parties, testamentary directions, or organisational arrangements can stand on their own. Whether a particular clause is binding is decided by interpreting the will. And this is precisely where disputes tend to begin.

The “free disposal” trap

Many older Berlin wills contain wording such as: the survivor may “freely dispose of the estate” or is “not confined to a particular body of assets”. As a rule, these clauses are meant to make just one thing clear: the survivor is to be a full heir (Vollerbe) and not tied to the ultimate heirs’ protected assets as a mere provisional heir (Vorerbe) would be. In other words, during their lifetime they may sell, spend, and give things away.

That is something fundamentally different from the right to change the succession itself by making a new will - that is, to determine who is to inherit after their own death. Sometimes the will says so expressly: the appointment of the ultimate heirs, once made, cannot be altered. Sometimes it follows from interpreting the will as a whole - that the appointment of the ultimate heirs was meant to be fixed. In both cases the binding effect survives, notwithstanding the freedom granted during lifetime. Where the wording is ambiguous, the interpretation that keeps the provision valid prevails in case of doubt. As a rule, this favours the binding effect the testator intended - not against it. This very distinction between “free use during one’s lifetime” and “the power to alter succession on death” is the most common flashpoint. It surfaces when a remarriage is on the horizon or new wishes about inheritance take shape.

Four ways a change may still be possible

1. An opening clause was built in from the start. Some couples provide for this in the will itself: the survivor may still adjust the shares of the ultimate heirs among the couple’s own children. This allows them to respond, for instance, to care given, to a child’s financial need, or to developments within the family. Where such a clause exists, a change is permissible - within the scope it allows. Usually that scope is limited to the circle of people originally benefited.

2. Disclaiming the inheritance. The survivor can disclaim what the will leaves to them. In doing so they free themselves from the binding effect of their own mutually dependent provision and can make a new will. But they lose their standing as heir of the first to die entirely. They are left only with the compulsory portion and, where the couple lived under the community-of-accrued-gains regime, the equalisation of accrued gains. The period for disclaiming is very short - six weeks from becoming aware of the position - so here every day counts.

3. A consensual waiver of inheritance rights by the ultimate heirs. If the ultimate heirs named in the will - usually the couple’s children - waive their future inheritance rights before a notary, their position falls away. The survivor is then free to make fresh provision to that extent. This requires everyone affected to be on board. It is a contractual solution, not a one-sided change.

4. A challenge in narrow exceptional cases. Two situations may qualify. When the will was made, a person entitled to a compulsory portion was passed over whose existence was unknown to the spouses. Or such a person came into being only later - a child born afterwards, for example. In both cases the affected provision may be open to challenge. But this applies only on one condition: it must not be assumable that the spouses would have made the provision in the same terms had they known of the circumstance. This door is rarely open.

What is at stake if you simply make a new will

Anyone who ignores the binding effect and makes a new will regardless takes a risk. That new will may later be declared invalid. The consequence: a certificate of inheritance is then issued on the basis of the original appointment of the ultimate heirs. For the new person actually named in the will - a second spouse or a new child - this can mean coming away with nothing at all, even though everyone had assumed a different succession for years. For the family it almost always means proceedings for a certificate of inheritance before the probate court. There, the two wills are set against each other - with the corresponding cost in time and money.

A typical case from practice

Many years ago, a couple had made a Berlin will: each appointed the other as sole heir, with their two children as the ultimate heirs in equal shares. After his wife’s death, the widower remarried and wanted to name his second wife as a co-heir in a new will. On examining the old will, it emerged that the appointment of the children as ultimate heirs was unmistakably framed as mutually dependent, and there was no opening clause. The widower faced a choice. He could stay with the original arrangement - and, to change it, disclaim the inheritance from his first wife and give up his standing as her sole heir. Or he could seek a consensual solution with his children by way of a notarised waiver of inheritance rights. He chose to talk to his children - a solution that would not have been possible without examining the old will in good time.

Common mistakes

• Not having the will examined in its original form. People who go only on their memory of what the old will “meant” often overlook the decisive wording.
• Letting the disclaimer period lapse. By the time you start thinking about disclaiming weeks or months later, that option has usually already been lost.
• Simply making a new will without checking the binding effect. The new will costs time and notary’s fees and, in case of doubt, is invalid all the same.
• Presenting the ultimate heirs with a fait accompli instead of opening a conversation. A consensual waiver of inheritance rights fails less often on the law than on poor communication.
• Confusing “free disposal” with “free choice of succession”. Equating the two regularly leads to nasty surprises in the proceedings for a certificate of inheritance.

Frequently asked questions

As the survivor, am I automatically bound by the entire will?

No. You are bound only by the provisions that are genuinely mutually dependent - typically the reciprocal appointment as heirs and the arrangement for ultimate heirs in favour of the couple’s own children. Other directions, such as individual legacies to third parties, may stand on their own and can therefore be changed. This can only be settled by interpreting the particular will.

What happens if I make a new will despite the binding effect?

The new will is invalid to the extent that it conflicts with the mutually dependent provision of the old one. When the inheritance falls due, it is ultimately the probate court that decides, in the proceedings for a certificate of inheritance, which will applies. That carries a risk: the person named in the new will may come away with nothing.

Can I at least give away individual assets during my lifetime?

As a rule, yes - provided there is no special binding effect and no intention to circumvent the will by disadvantaging the ultimate heirs. With so-called prejudicial gifts, however, the ultimate heirs may, under certain conditions, be able to bring claims after the survivor’s death. This really ought to be checked before any substantial gift.

Do I really lose everything by disclaiming?

You lose your standing as heir of your deceased spouse, and with it access to the assets left to them under the will. Depending on the marital property regime and your family circumstances, however, you are still entitled to the compulsory portion and possibly to an equalisation of accrued gains. Whether disclaiming makes financial sense depends very much on the individual case and should be worked through beforehand.

As a couple, can we still add an opening clause now, after the event?

As long as both spouses are living, yes - the will can be changed or supplemented jointly, either before a notary or in handwriting, depending on its original form. Once the first spouse has died, this is no longer possible; from then on, only what was fixed at that point applies. Anyone who wants this flexibility should provide for it expressly while both partners are alive.

Your next step

Whether you are truly bound depends on the precise wording of your will - blanket answers help no one here. Bring me the original or a certified copy. In an initial consultation I will then tell you which of the routes described is open to you. And I will explain what each one means financially. You will also find further information on wills and succession on my topic page Inheritance Law. Do get in touch - especially where disclaimer periods are concerned, every week often counts.

This article provides general information and is no substitute for legal advice in an individual case. Last updated: 2026-09-02.

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