Named in an Inheritance Contract but the Assets Were Given Away: Can I as a Contractual Heir Reclaim the Gift?

Your testator was bound by an inheritance contract and gave assets away anyway? I explain when you, as a contractual heir, can recover the gift under § 2287 BGB.

You are named as heir in an inheritance contract (Erbvertrag) — and after the testator’s death you discover that during their lifetime they gave away large parts of their estate. The property, the savings account, the securities portfolio: all gone, to another relative or a third party. You are quite right to ask what the inheritance contract was actually good for. The answer is not always “hard luck”. Under certain conditions, the law gives you your own claim against the person who received the gift.

In short

If the testator made a gift with the intention of prejudicing you as the contractual heir, you can demand that the recipient hand the gift back — under the rules on unjust enrichment (§ 2287(1) BGB). What matters here is not primarily what the testator reserved for themselves in the contract, but whether they intended the gift to hollow out your contractual position as heir. Under settled case law of the highest courts, the position is clear: a merely agreed but never actually exercised right to withdraw from the inheritance contract does not stand in the way of this claim for recovery.

How I can help you

• Checking whether your inheritance contract in fact secures you as heir in a binding way, and which gifts fall within its scope
• Assessing the intention to prejudice on the basis of the concrete circumstances of the gift
• Monitoring time limits and enforcing the claim against the recipient in good time
• Correspondence and out-of-court negotiation with the recipient
• Bringing proceedings and representing you in court where a settlement cannot be reached

When does the claim for recovery under § 2287 BGB apply?

The claim first requires that you have been appointed heir by a valid inheritance contract (or a joint will containing mutually dependent, reciprocal dispositions). Only this contractual binding is protected by § 2287 BGB — a freely revocable single will is not enough, because in that case the testator could in any event have disposed otherwise at any time.

The second requirement is that the testator must have made the gift “with the intention of prejudicing the contractual heir”. This is the heart of the dispute in most cases. Such an intention to prejudice does not arise automatically simply because a gift was made — every testator is in principle free to dispose of their assets during their lifetime, even where an inheritance contract exists. What matters is whether the testator still had a genuine lifetime interest of their own in the gift (for example provision for someone, thanks for care given, the recipient’s own retirement provision), or whether the gift served solely to strip the contractual appointment of heir of its economic value. The more the testator retained something for themselves, or had a comprehensible motive of their own, the harder it is to establish an intention to prejudice. The closer the gift comes to the moment of death, and the more completely it hollows out the estate, the more it points to a deliberate circumvention.

What role does a reserved right of withdrawal play?

In many inheritance contracts the testator reserves a contractual right, under certain conditions, to withdraw from the contract (§ 2293 BGB). Recipients frequently argue that if the testator could have withdrawn and removed the contractual binding in any case, then a mere gift can hardly have been unlawful.

The highest courts have firmly rejected this line of argument: as long as the testator has not actually withdrawn from the inheritance contract, the contractual heir is entitled to rely on inheriting from them. The mere reservation of a right of withdrawal — where it was never used — does not bar the claim for recovery under § 2287 BGB. Otherwise the testator could give their assets away during their lifetime and, by that route, let the contractual appointment of heir run economically dry without ever having to declare the formal withdrawal at all. For you as the contractual heir this means that a right of withdrawal set out in the contract but never used is not, in itself, an argument against your claim.

How does the recovery work and what is the time limit?

The claim arises only “after the inheritance has passed to them” — so you can only assert it after the testator’s death, not already during their lifetime. It is directed against the recipient, not against the estate, and it follows the rules on unjust enrichment. This has practical consequences: if the item still exists, it must be handed over; if it has already been used up or passed on, the claim may turn into a claim for compensation in money, though the recipient may in certain circumstances rely on a cessation of enrichment where they acted in good faith and no longer have anything from the benefit received.

For limitation purposes the key point is this: the period begins to run on the death of the testator (Erbfall), regardless of when you learned of the gift. So do not wait until you are “completely certain” — precisely where a gift only comes to light gradually (for example through a Land Register extract or bank statements), the matter should be reviewed promptly, so that evidence can be secured and time limits observed.

An example from practice

A client is appointed sole heir by an inheritance contract with her late father. Three years before his death, the father transferred his only asset of real value — a plot of land — to his new partner free of charge, but reserved a lifelong right of residence and had no other assets worth mentioning left. The inheritance contract did contain a right of withdrawal in the event of serious misconduct by the daughter — but the father had never used it. After his death the daughter demands that the partner transfer the land back. Reviewing cases of this kind focuses on two questions: was there a plausible interest of the testator’s own behind the gift — or did it clearly serve to leave the heir effectively empty-handed? And did the unused right of withdrawal stand in the way of a claim for recovery? Under settled case law of the highest courts, the latter must clearly be answered in the negative.

Common mistakes

Many people affected wait too long because they believe limitation only begins once they learn of the gift — in fact the period runs from the death of the testator. Just as often, the claim is wrongly directed against the estate or the community of heirs rather than against the person who actually received the gift. Some clients give up prematurely because the inheritance contract contained a right of withdrawal, without checking whether the testator ever made use of it. And it is not uncommon for people to fail to secure evidence early on about the testator’s financial position at the time of the gift — such as Land Register extracts, account movements, or witnesses to their state of health and family circumstances.

Frequently asked questions

Does § 2287 BGB also apply to a joint will?

Yes. The case law applies the claim for recovery correspondingly to mutually dependent, reciprocal dispositions in a joint will of spouses, once these have become binding on the surviving spouse. The requirements — contractual binding and intention to prejudice — are the same as for an inheritance contract.

Do I have to prove that the testator deliberately wanted to harm me?

You must set out the intention to prejudice and, if it is disputed, prove it — though the case law assists you with indicators: if the testator had no comprehensible lifetime interest of their own in the gift, that points towards an intention to prejudice. The closer the connection, in timing and substance, to the hollowing out of your share of the estate, the easier it is to establish.

What if the recipient has already used up the gift?

Then the claim to hand the item back generally turns into a claim for compensation in money. The recipient may, however, in certain circumstances rely on a cessation of enrichment where they acted in good faith and nothing of the benefit remains — here a careful review of the individual case is worthwhile.

Can the recipient rely on a right of withdrawal reserved by the testator?

No — at least not simply because such a right was set out in the inheritance contract. Under settled case law of the highest courts, a reserved but not actually exercised right of withdrawal does not exclude the contractual heir’s claim for recovery.

Do I have to proceed against the estate first before pursuing the recipient?

No. The claim under § 2287 BGB is directed straight at the recipient and does not require any prior dealing with the estate or with the other heirs.

Your next step

Whether a gift really was prejudicial, and whether a reserved right of withdrawal stands in the way of your claim, depends heavily on the circumstances of the individual case — here an early, concrete review is worthwhile, before time limits run or evidence is lost. In an initial consultation I gain an overview of the inheritance contract and the gift and show you what prospects of success and what next steps are realistic. You can find out more about my work in inheritance law on my topic page. Get in touch, so that we can assess your case together.

This article provides general information and is no substitute for legal advice in an individual case. Last updated: 2026-07-31.

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