Inheritance Law2026-10-26

I claimed my compulsory share after my father died – does the penalty clause in the Berlin will now apply?

If you claim your compulsory share after one parent dies, a Berlin will often strips you of your position as final heir. What a compulsory-share penalty clause actually does, what triggers it – and what does not.

Your father has died and your mother is still living. The two of them made a joint will – a Berlin will – in which you, as their child, were disinherited for the first death. Now you have claimed your compulsory share, or you are thinking about it. The will contains a clause that penalises precisely that: the compulsory-share penalty clause. So what does this actually mean for you?

In short

The penalty clause does not penalise the compulsory-share claim that has already arisen against your father’s estate – you will receive that payment in any event. What it penalises is your position as an heir when your mother dies. If you claim your compulsory share after your father’s death, you will as a rule drop out of the appointment as heir for the later, final succession. When your mother then dies, you will only be entitled to a compulsory share, and no longer an heir. Whether the clause applies at all in your case depends on the exact wording of the will. That is a question of interpretation, and it should be settled before you take any further step.

How I can help

Interpreting the will: does your particular course of action – an enquiry, a request for information, a reminder, a court claim – actually trigger the clause?
Calculating your compulsory share after your father’s death and enforcing it against your mother as sole heir
Tactical advice before you take the very first step
Representation in the later compulsory-share claim against your mother’s estate, once the clause has taken effect
Keeping track of time limits, so that no claim becomes time-barred

How the clause works in technical terms

In a Berlin will, the spouses appoint each other as sole heir and only appoint their children as heirs for the death of the longer-living parent – the final succession. This appointment of the children as final heirs is usually a mutual disposition under § 2270 BGB, as is the spouses’ reciprocal appointment of each other. Each disposition stands or falls with the other. After the first parent dies, both are in principle binding, § 2271 BGB. What this binding effect means in detail, and when it can be broken, I explain at length in my introductory article on the Berlin will.

The compulsory-share penalty clause attaches a condition to precisely this appointment of the final heirs: only the child who does not claim its compulsory share on the first death becomes a final heir. If a child does claim it, the condition is met. That child then drops out of the appointment as heir. When the longer-living parent dies, the child does not become an heir but – just as on the first death – is once again only entitled to a compulsory share. This effect takes place automatically, by virtue of the will alone: the surviving mother need do nothing further to bring it about.

What triggers the clause – and what does not

This is where most disputes arise. Clauses are worded differently and must be interpreted accordingly:

“Claims” or “demands” the compulsory share: under most wordings, a serious, outwardly recognisable demand is already enough – for example a letter in which the compulsory share is quantified and payment is requested.
A mere request for information under § 2314 BGB: some people begin by simply asking about the size of the estate. All they want is to assess their own position. Under the wording of many clauses, this does not yet trigger the penalty. A request for information is not automatically the same as a demand for payment. This does not hold across the board, though – it depends on the specific wording of your clause.
A court claim or formal legal enforcement: this almost always triggers the clause, provided it is validly worded.
Simply disclaiming the inheritance without claiming the compulsory share: the typical clause is generally not triggered, because the child was not an heir on the first death anyway and had nothing to disclaim.

Before you write anything or make any demand, the exact wording of your clause should therefore be examined. It decides whether a particular act already “counts”.

Two deaths, two separate claims

Compulsory share after your father: this arises on his death, § 2317(1) BGB, in the amount of half the statutory share of the estate, § 2303 BGB. This claim against your mother as sole heir is yours regardless of the penalty clause – the clause does not take away a claim that has already arisen.
Your position when your mother dies: this is where the real consequence lies. Instead of becoming a final heir, you are then only entitled to a compulsory share. An entirely new, self-standing claim arises against your mother’s estate, usually against your siblings as the remaining final heirs. You will have to claim this separately again at that later point in time.

In some wills the clause is framed not as a complete exclusion but as a legacy solution: the child who makes the claim then remains a restricted heir, or receives a legacy equal to the compulsory share instead of the position of heir. If the child is thereby appointed as an heir but restricted by legacies, testamentary directions or a reversionary heirship, it may choose under § 2306 BGB: remain a restricted heir, or disclaim and demand the full compulsory share. Whether this variant was chosen in your will, once again, only a close reading of the clause will reveal.

Time limits

The ordinary limitation period for a compulsory-share claim is three years, §§ 195, 199(1) BGB. It does not begin at once. Time runs from the end of the year in which two things come together: the claim has arisen, and you have learned both of the death and of the disposition that disadvantages you. Here that is the disinheritance under the Berlin will. The same applies where you ought to have learned of it but for gross negligence. Your actual knowledge no longer matters, however, once 30 years have passed since the claim arose. At that point the claim is time-barred in any event, § 199(3a) BGB. For the claim that only comes into consideration after your mother’s death, a separate, fresh period begins at that later point in time. It is entirely independent of the limitation of the first claim.

A typical case

A father dies. In accordance with the will, the mother becomes sole heir. The only child is to inherit only after her death. Under the statutory matrimonial property regime of the community of accrued gains – the most common case – the child would be entitled by law to half of the father’s estate. Alongside one child, the surviving spouse receives a quarter under § 1931(1) BGB and, as a flat figure, a further quarter by way of the equalisation of accrued gains under § 1371(1) BGB. The compulsory share is half of that, so a quarter of the estate. The child claims this sum – out of financial hardship, without first examining the will closely. The clause takes effect. When the mother dies, the child no longer becomes an heir but, once again, receives only the compulsory share out of her estate.

Common mistakes

Making a claim without first checking the exact wording of the clause. Some wordings leave room for manoeuvre that hasty action throws away.
Assuming that the compulsory share after the first parent is put at risk by the clause. It is yours in any event. The clause concerns only the future.
Treating a request for information as a demand for payment. This leaves unexamined whether the specific clause even draws that distinction.
Letting your own limitation period for the claim after the first death lapse because you wanted to wait for the final succession.
With a legacy solution, overlooking the right to disclaim under § 2306 BGB and so remaining bound by a less favourable restriction.

Frequently asked questions

No. The claim arose on your father’s death and is yours regardless of the penalty clause. The clause concerns only your position as final heir when the longer-living parent dies.

Is it already enough if I merely ask about the size of the estate?

That depends on the exact wording of your clause. Many clauses require an actual demand for payment and leave a mere request for information under § 2314 BGB untouched. There is, however, no general rule that applies to all wills alike.

Can my mother still change the clause after the event?

In principle, no. It is usually a mutual disposition that became binding on your father’s death. Exceptions to this binding effect are narrowly limited and explained in my introductory article on the Berlin will.

What happens if I want to remain a final heir despite the clause?

Then you must not claim your compulsory share after the first death. You should only make that decision, though, once you have weighed the amount of the compulsory share, the wording of the clause and your personal situation against one another.

No. This claim too must be asserted separately against the heirs who then remain, with its own calculation based on your mother’s estate and its own, freshly running limitation period.

Your next step

Before you make a claim, send a reminder or go to court: have the clause in your will interpreted. The exact wording decides whether you keep or give up your position as final heir. That can scarcely be put right after the event. I will examine your will, calculate your compulsory share and guide you through both deaths. You will find more on matters surrounding inheritance in the inheritance law section. Advice is available nationwide, by video or by telephone.

This article provides general information and is no substitute for legal advice in an individual case. Last updated: 2026-10-26.

Christian Czirnich, Rechtsanwalt (attorney at law), Kirchseeon near Munich

Tell me what the will says and what you claimed – I will take a look.

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