Own home and death of spouse/cohabiting partner

• Contracts
• Inheritance Law
• Private Clients
• Real Estate

When spouses/cohabiting partners purchase a home today, it is not uncommon for both to be entered in the land register as owners. There is often a desire for the other spouse/cohabiting partner to automatically become the sole owner of the home in a first step upon the death of the spouse/cohabiting partner. And only in a second step should any joint or non-joint children be included.

How to transfer the home to the spouse without violating inheritance law

However, if there are other heirs, such as children, it is imperative that appropriate arrangements are made during the lifetime of both spouses/cohabiting partners so that this does not remain merely a wish and can be realised in a legally binding manner.

How can the spouses/cohabiting partners ensure that on the death of the first deceased the entire ownership of the home passes directly to the surviving spouse without – depending on the family circumstances – inheritance law getting in the way?

Specific partnership agreement

This objective can be achieved with a specific partnership agreement, in which in particular a so-called “accretion clause” is agreed. This agreement under company law takes precedence over inheritance law.

This stipulates that sole ownership is transferred to the survivor on the death of the first deceased. Other heirs, even if they are the children, cannot assert any real claims to the home because it is not included in the estate in the first place. The challenge of an avoidance-proof settlement clause can also be realised with a corresponding provision.

Subsequent entry in the land registry for joint ownership

If only one spouse/cohabiting partner is registered as the owner in the land register, this can lead to problems for the survivor in the event of the sole owner’s death. Therefore, depending on the constellation, it may be advisable to subsequently transfer the home to the other party as joint property in the land register and at the same time conclude a corresponding partnership agreement.

Conclusion

The decision as to the extent to which the jointly owned home should be transferred to the sole ownership of the survivor by means of a corresponding partnership agreement and thus excluding the right of inheritance depends on the overall constellation in each case. It requires forward-looking and integral estate planning.

We are happy to assist you as a spouse, cohabiting partner or family. We protect partnerships and families – across generations.