Gifting the house during your lifetime – does the gift really stop counting after ten years?

Everyone knows about the ten-year rule for gifts and the compulsory portion. What many people don't realise: where a usufruct, a right of residence or a gift between spouses is involved, the clock often runs quite differently – or not at all.

Your mother signed the house over to one of your siblings twelve years ago, but reserved a right of residence or a usufruct for herself. Now she has died, and you are being told about the “ten-year rule”, under which gifts supposedly no longer count towards the compulsory portion. Before you resign yourself to that: in precisely this situation – a gift with a reserved right of use – the ten-year rule very often turns out to be misleading in practice.

In short

The ten-year period only begins once the gift has been fully “performed” – not on the date of the notarial deed or the entry in the land register. The person making the gift frequently reserves a usufruct over the property they are giving away. For as long as that usufruct exists, the recipient has received nothing in economic terms. As a rule, then, the clock only starts once the usufruct falls away – which usually means only on death. With a mere right of residence, it depends on the individual case. In other words: even a gift made twelve, fifteen or twenty years ago can still count in full towards the supplementary compulsory portion.

How I can help you

• Checking whether the ten-year period ever began to run in relation to the specific gift
• Distinguishing between usufruct, right of residence and an unencumbered transfer, and what each means for your claim
• Calculating the amount that can be brought into account, including the tapering and the valuation
• Enforcing the claim against the heir (§ 2325 BGB) or, where the estate is insufficient, directly against the recipient of the gift (§ 2329 BGB)
• Negotiating out of court and, where necessary, bringing proceedings

When does the ten-year period really begin?

§ 2325 (3) BGB does not look to the conclusion of the contract, but to the “performance of the gifted object”. With a house, that means the person making the gift must actually and definitively have given the object away out of their assets – in economic terms, not merely on paper. Conveyance before the notary and re-registration in the land register are necessary conditions, but not always sufficient ones.

What matters is whether, after the transfer, the donor still derives significant economic benefits from the object. This is exactly where reservations of a usufruct or a right of residence come in, which are the norm when a property passes to the next generation.

I explain the basics of the compulsory-portion claim – who is entitled, how much, and how to pursue it out of court – in the first part of this series: Enforcing the compulsory portion. Here I deal only with the special case of a gift subject to a reserved right of use.

Usufruct and right of residence: the crucial difference

A reserved usufruct: A usufruct gives the donor the right to use the entire house and to take all the income from it. In principle they could even let it out and keep the rent. In economic terms, almost everything therefore stays with the donor; only the formal position of owner changes hands. For this reason, a gift subject to a reserved usufruct is, as a rule, not yet “performed” within the meaning of § 2325 (3) BGB for as long as the usufruct continues. The ten-year period then normally begins only when the usufruct expires. That usually happens only on the death of the donor. The practical consequence: in the vast majority of “house handovers with a usufruct”, the clock in fact never starts. On death, the gift counts in full towards the supplementary compulsory portion.

A mere right of residence: A right of residence entitles the holder only to personal use of particular rooms, not to take all the income the property produces. Is that enough on its own to block the start of the period? That depends on the circumstances: how large is the reserved area in proportion to the property as a whole? Can the recipient already make economic use of the rest, for example by letting it? The smaller the reserved economic benefit, the more likely it is that the gift was already “performed” on transfer, so that the clock runs normally. Where a single-family home is subject to a right of residence over the whole house, the case often sits closer to a usufruct. Where the donor lives in only one of several flats in a multi-family building, it sits further away.

The tapering: how the amount is calculated once the clock is running

If there is no reserved right of use, or it fell away earlier, the period does indeed run. In that case the gift does not abruptly stop counting altogether after ten years; instead it tapers off year by year:

• Gift made in the last year before the death: taken into account at 100%
• in the year before that: at 90%
• one year further back: at 80%
• and so on, by a further tenth for each full year
• from the tenth full year before the death: 0%, and the gift is left out of account

The relevant figure here is the value of the house. Under what is known as the lowest-value principle, non-consumable objects such as a house are in principle taken at their value at the time of death. If the value at the time of the gift was lower, that lower value applies (the lowest-value principle). Increases in value that only occurred after the gift (for example through general market movements or investments by the recipient) therefore tend to work in the recipient’s favour.

Special cases: spouses and the claim against the recipient

Where the house was given to the spouse of the deceased, a separate rule applies: under § 2325 (3) BGB the ten-year period does not begin before the marriage is dissolved – that is, not before divorce or the death of one of the spouses. With “gifts between spouses” the donor is often making provision for the surviving partner. The clock then often starts only with the death itself – regardless of how long ago the gift was made.

The estate must be sufficient to satisfy your supplementary compulsory-portion claim. If it is not, your claim is not directed only against the heir. Under § 2329 BGB you can then demand the shortfall directly from the recipient of the gift, if need be by having the gift handed over under the rules on unjust enrichment. The recipient can avoid this by paying the outstanding amount. This is particularly relevant where the heir themselves is without means but the recipient of the gift is not.

A typical case

Fourteen years ago a mother transfers her single-family home to her son by notarial deed and reserves a lifelong usufruct. She lives there until her death and could, in theory, have let the house out. The daughter was disinherited. She assumes that the gift is “time-barred” because of the ten years, and very nearly lets the time limit for pursuing her supplementary compulsory-portion claim slip by. In reality, because of the usufruct the ten-year period never began to run at all: the gift was only “performed” on the mother’s death, and it counts in full.

Common mistakes

• Relying on the ten-year period without checking whether any reserved right of use existed at all
• Equating the notarial deed and the land-register entry with “performance” within the meaning of § 2325 BGB
• With a mere right of residence, arguing too hastily as though it were a usufruct, without examining the actual economic substance
• Pursuing only the heir, even though the estate is insufficient and a claim against the recipient of the gift under § 2329 BGB would have been the obvious course
• Applying the current market value of the house instead of checking the lowest-value principle

Frequently asked questions

Does a gift made 15 years ago really still count towards the compulsory portion?

Yes, if the donor reserved a comprehensive right of use such as a usufruct up until death. In that case the ten-year period never began to run, because the gift was only completed in economic terms on death.

Is a simple right of residence enough to block the period?

That depends on its scope. The greater the reserved economic benefit in relation to the total value of the house, the more the right of residence works like a usufruct and blocks the start of the period.

Who do I have to bring my claim against – the heir, or my brother as the recipient of the gift?

Against the heir first. Only if the estate is insufficient can you demand directly from the recipient, under § 2329 BGB, that the gift be handed over or that the outstanding amount be paid.

Which value of the house is used for the calculation?

In principle the value at the time of death, unless the value at the time of the gift was lower – in which case that lower value applies (the lowest-value principle).

What applies if the house was given to the spouse?

For gifts between spouses, the ten-year period does not begin before the marriage is dissolved by divorce or death. In practice, this often means the clock only starts with the death itself.

Your next step

Whether a gift still counts towards your compulsory portion turns on the details – not on a blanket ten-year rule. Those details emerge from the notarial contract and the actual circumstances. I will review the transfer contract for you and establish when the clock actually began to run. I will then calculate the amount that can be brought into account. Arrange an initial consultation so that I can secure your claim. Act before the time limits for pursuing it expire. You will find more on all questions surrounding an inheritance in the inheritance law section.

The next part of this series deals with the limitation period for the compulsory-portion claim. You should not wait to address that until every dispute about the gift has been resolved.

This article provides general information and does not replace individual legal advice. Every case turns on its own facts.

This article provides general information and is no substitute for legal advice in an individual case. Last updated: 2026-09-20.

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