Inheritance Law2026-11-03

Separated but not divorced: does my spouse still inherit?

You live apart, the divorce isn't through — and your spouse is still your statutory heir. What share they would receive, when § 1933 BGB actually cuts off the right to inherit, and what you can change today.

You have been living apart for months or years, you keep separate accounts and separate homes — but on paper you are still married. And then comes the question many people ask too late: if something happened to me today, would my spouse still get half? The short answer is uncomfortable, and it can be changed — but only if you do something about it yourself.

In brief

Yes. Separation in itself changes nothing about your spouse’s statutory right to inherit — not even after ten years. That right falls away only once the marriage has been finally dissolved by divorce, or where the narrow conditions of § 1933 BGB are met: at the time of death the grounds for divorce must have existed and the deceased must themselves have petitioned for the divorce or consented to it. If one of those is missing, your separated spouse inherits just as they would have on your wedding day.

How I can help

I work out the share your separated spouse would actually receive today — and what would be left of your estate for children or other relatives.
I check whether § 1933 BGB applies in your case, or whether you still need to take a step for it to do so.
I review any existing will — above all a joint or “Berlin” will — to see whether, after the separation, it still achieves what you want, and how you can free yourself from it.
I draft your will so that your spouse is held to the statutory minimum, and I show you exactly what that minimum costs.
On the other side: if you are the separated spouse and are suddenly to receive nothing, I assert your claims to inheritance, to the compulsory portion and to equalisation of accrued gains.

What your spouse receives without a will — with the calculation

Without a will, the statutory rules of succession apply, and they do not recognise the term “living apart”. Two building blocks are added together:

Block 1 – the statutory share. Under § 1931 Abs. 1 BGB a spouse inherits one quarter alongside relatives of the first order (children, grandchildren), and one half alongside relatives of the second order (parents, siblings) or alongside grandparents. If there are no such relatives, the spouse inherits everything under § 1931 Abs. 2 BGB — and that happens more often with childless couples than you might think.

Block 2 – the flat-rate quarter for accrued gains. If you have not entered into a marriage contract, you live in a community of accrued gains (Zugewinngemeinschaft). In that case § 1371 Abs. 1 BGB increases the statutory share by a further quarter — and does so as a flat rate, with no calculation at all. Whether any gain was in fact accrued during the marriage is expressly irrelevant to this quarter.

Worked example: an estate of €400,000, two children, no marriage contract, no will. The separated spouse receives 1/4 + 1/4 = one half, that is €200,000; the children share the remainder, €100,000 each. On top of that, the spouse thereby becomes a member of the community of heirs — they have a seat at the table for every decision about the house.

If, on the other hand, you have agreed on separation of property (Gütertrennung) and there are one or two children, spouse and children inherit in equal shares under § 1931 Abs. 4 BGB — so with one child a half each, with two children a third each. The quarter under § 1371 BGB falls away here.

When § 1933 BGB actually cuts off the right to inherit

§ 1933 BGB is the only provision that helps before a final divorce — and it sets up two hurdles, both of which must have been cleared at the time of death:

The grounds for divorce existed. The marriage must therefore have broken down (§ 1565 Abs. 1 BGB). In practice this usually means the year of separation had elapsed. After one year of separation the irrebuttable presumption of § 1566 Abs. 1 BGB applies if both spouses want the divorce; after three years of separation it applies under § 1566 Abs. 2 BGB even without the other’s consent. Before the year of separation has run, a divorce is possible only in a case of hardship under § 1565 Abs. 2 BGB — § 1933 BGB then usually comes to nothing.
The deceased had petitioned for the divorce or consented to it. This is the point at which most cases fail. If your spouse filed the petition and you never consented, your estate remains open to them. The same is true in reverse. The consent must have been declared in the proceedings — an informal understanding at the kitchen table is not enough.

Where § 1933 BGB does apply, not only does the right to inherit fall away but so does the so-called Voraus (the household items). And because the compulsory portion under § 2303 Abs. 2 BGB is one half of the statutory share, no compulsory portion remains either once that statutory share is excluded. The surviving spouse is then, under § 1933 BGB, directed to maintenance under §§ 1569 bis 1586b BGB — and to the equalisation of accrued gains, which is settled under matrimonial property law.

Proceedings that have lain dormant for years do not automatically undo this effect: § 1933 BGB turns on the petition that was filed and on the grounds for divorce existing at the time of death, not on how swiftly the proceedings were conducted. What matters is whether the marriage had still broken down at the time of death. If the spouses had in the meantime resumed married life together, that is precisely what may be absent — and here it is worth looking closely at the file.

Wills and the Berlin will after separation

A will in which you have provided for your spouse becomes ineffective under § 2077 Abs. 1 BGB if the marriage is dissolved before your death — and likewise if the grounds existed and you had petitioned for the divorce or consented to it. But take care: § 2077 Abs. 3 BGB keeps the disposition effective if it is to be assumed that you would have made it even for this eventuality. That is a question of interpretation — and so a dispute your heirs will have to fight out.

With a joint will the position is harsher: under § 2268 Abs. 1 BGB it is ineffective in its entire content in the cases covered by § 2077 BGB — subject to the counter-exception in Absatz 2. But so long as no divorce petition is pending, your Berlin will remains fully in force. During your lifetime you can revoke reciprocal dispositions only by a declaration recorded by a notary and served on the other spouse. A copy torn up in a drawer achieves nothing.

If you disinherit your spouse unilaterally, they still retain under § 1371 Abs. 2 BGB the concrete equalisation of accrued gains under §§ 1373 bis 1383, 1390 BGB plus the compulsory portion, which is then measured by reference to the unincreased share — in the example above, therefore, 1/8 of the estate, €50,000. That is considerably less than half, but it is not nothing.

A typical case

A client has been living apart from his wife for four years, two adult children, a detached house, no marriage contract. No one has ever started divorce proceedings — they had “come to an arrangement”. There is a joint will from the time of the marriage: each appointing the other as sole heir, the children as ultimate heirs. If he dies now, the separated wife inherits the entire house, because the will is effective, § 2268 BGB does not apply without a divorce petition, and § 1933 BGB likewise does not apply without his own petition. During the mother’s lifetime the children receive nothing but their compulsory portion — and must enforce it against her within the limitation period. Two steps would have prevented this: the notarially recorded revocation, duly served, and a new will.

Common mistakes

Relying on the length of separation. There is no period after which the spouse’s right to inherit lapses of its own accord.
Counting on the fact that the other party filed the divorce petition. For § 1933 BGB, all that matters is what the deceased petitioned for or consented to.
Forgetting the old joint will. It is often the strongest lever working against your own wishes — and the one most easily overlooked.
Confusing equalisation of accrued gains with the right to inherit. These are two separate claims; one does not fall away with the other.
Changing only the will. Account and healthcare powers of attorney, as well as beneficiary designations in life insurance policies, operate independently of the right to inherit and must be revoked or amended separately.
Waiting too long as a disinherited spouse. Claims to the compulsory portion and to equalisation become time-barred; the period for disclaiming an inheritance is, as a rule, only six weeks from becoming aware of it.

Frequently asked questions

Will my spouse still inherit if we have been living apart for ten years?

Yes. The length of the separation is irrelevant to the statutory right to inherit. So long as the marriage has not been finally dissolved by divorce and the conditions of § 1933 BGB are not met, your spouse inherits under § 1931 BGB — and, in a community of accrued gains, by a further quarter under § 1371 Abs. 1 BGB.

Is it enough that divorce proceedings are under way?

Only if you yourself filed the petition or consented to it and the grounds for divorce existed at the time of death. Both must coincide. A petition filed by the other spouse alone, which you never consented to, leaves your spousal right to inherit untouched.

Can I completely disinherit my separated spouse?

Completely only if § 1933 BGB applies or there is a notarial waiver of inheritance and the compulsory portion. Otherwise the compulsory portion remains: under § 1371 Abs. 2 BGB the spouse who has not been provided for receives the concrete equalisation of accrued gains and a compulsory portion calculated by reference to the unincreased statutory share.

What happens to our Berlin will if we separate?

At first, nothing — it remains effective. Only once the marriage has been dissolved or the conditions of § 2077 Abs. 1 BGB are met is the joint will ineffective in its entirety under § 2268 Abs. 1 BGB, subject to the counter-exception in Absatz 2. If you want to free yourself from it beforehand, you need the revocation recorded by a notary and duly served.

Does my spouse lose maintenance along with the right to inherit?

No, these are different things. § 1933 BGB in fact directs the surviving spouse to claims for maintenance under §§ 1569 bis 1586b BGB. The loss of the right to inherit therefore does not mean that no claims whatsoever remain against the estate.

Your next step

If you are living apart and still married, your estate is in exactly the state you do not want it to be in — and that will not change by itself. A structured approach makes sense: first establish what would apply today, then clear any existing joint will out of the way, then make a new disposition, and only then discuss a divorce petition as an additional safeguard under § 1933 BGB. Bring to the first meeting whatever you have: old wills, any marriage contract, pleadings from the divorce proceedings, a rough overview of your assets. You can read more about my work in inheritance law on the topic page; we clarify the costs openly at the first meeting — on the basis of the RVG or a fee agreement — and I will check for you whether a legal expenses insurer will cover it.

Write to me with your case in two sentences, or call. I act for clients throughout Germany; the advice can, if you wish, run entirely by video or telephone.

This article provides general information and is no substitute for legal advice in an individual case.

This article provides general information and is no substitute for legal advice in an individual case. Last updated: 2026-11-03.

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

Tell me how long you have been separated and who should inherit – I will take a look.

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