Assets & discretion
Inheritance and Gifts in a Divorce – What Really Counts?
"Do I have to share my inheritance?" is one of the most common worries in a separation – and one of the most misunderstood. The good news: inherited and gifted assets are specially protected under German law. But there is an important exception that can decide a great deal of money. From over 300 proceedings handled, we explain what is privileged, where the limits lie and how to secure your inheritance.
Quick answer
Inherited and gifted assets are attributed to your initial assets and are therefore generally excluded from the equalisation of gains (Section 1374(2) German Civil Code, BGB). The value of the inheritance itself stays with you. Only the increase in value occurring during the marriage is equalised – and the income from it.
In brief
- Inheritance and gifts count towards initial assets – their base value is protected (Section 1374(2) BGB).
- Only the increase in value during the marriage is equalised.
- Income from the inheritance (e.g. rent, interest) can feed into the gain.
- What is decisive is proof of receipt and value – seamless documents are gold.
- A marital agreement or settlement can secure the protection further.
Does an inheritance count towards the gain?
The widespread misconception is that everything acquired during the marriage is shared. For inheritances and gifts this is not true. They are attributed to your initial assets – as if you had already owned them at marriage (Section 1374(2) BGB). This increases your initial assets by the value of the inheritance, and precisely this amount stays out of the equalisation of gains. The base value of your inheritance is thereby protected.
The important exception: increase in value
Protected is the value at receipt – not every later development. If the inherited assets rise in value during the marriage, this increase in value can feed into the gain. An example: if you inherit a securities portfolio or a property, the value at the time of inheritance remains your protected initial assets; the increase up to the relevant date, however, may be subject to equalisation. To account for inflation, the initial assets are also indexed.
Base value protected, increase not always
Your inheritance does not vanish into the settlement – but the increase in value arising during the marriage can count. How much depends on the individual case and above all on proof of the starting value.
Income from the inheritance
A distinction must be drawn between the substance and the income. Ongoing income – such as rent from an inherited property or interest and dividends from an inherited portfolio – generally no longer belongs to the privileged initial assets and can feed into the gain. Anyone who deliberately invests inherited assets to generate income should be aware of this consequence.
Classifying gifts correctly
For gifts from third parties – typically from one's own parents – the same privilege applies as for inheritances (Section 1374(2) BGB): the value at receipt counts towards initial assets. It is different for grants between spouses or so-called "marriage-related grants" – these follow their own rules and are a frequent point of dispute. Anticipated succession (transfer during one's lifetime) must also be classified cleanly.
Classify inheritance and gifts cleanly
Whether a property, portfolio or company share was inherited: we classify what is protected and what counts – and secure it with the right documents.
Proof: why documents are decisive
The protection of the inheritance is only as good as its proof. Anyone who cannot show what they inherited when, and what value it then had, risks the assets being treated as if earned during the marriage. That is why the will, certificate of inheritance, gift agreement, valuation report and bank statements from that time are decisive. Secure these documents early.
How to protect your inheritance
Beyond the statutory privilege, inherited assets can be secured further: through separate keeping (no mixing with joint assets), through clean documentation, and through a marital agreement or settlement that expressly excludes inherited assets. Especially for larger inheritances or family businesses, this is common and sensible.
Related topics
Division of assets High-net-worth divorce Property and divorce Shares and investments Prenuptial agreement Business-owner divorce
Free tools to check first: Equalisation of gains calculator
Frequently asked questions
Do I have to share my inheritance in a divorce?
Generally no. Inheritance counts towards initial assets and is excluded from the equalisation of gains. Only the increase in value during the marriage is equalised.
What happens to the increase in value of the inheritance?
The increase in value during the marriage can feed into the gain. The base value at the time of inheritance stays protected and is also indexed.
Does rental income from an inherited property count towards the gain?
Ongoing income such as rent or interest generally no longer belongs to the privileged initial assets and can be subject to equalisation.
Does this also apply to gifts from my parents?
Yes. Gifts from third parties are privileged like inheritances. Grants between spouses follow their own rules.
How do I prove what I inherited?
Via will, certificate of inheritance, gift agreement, valuation report and timely bank statements. Without proof, treatment as marital acquisition is a risk.
Can I secure my inheritance further?
Yes – through separate keeping, clean documentation and a marital agreement that expressly excludes inherited assets.