Consequences of a Marriage in Germany
What changes when you get married?
No other event (apart from death) has a greater legal and tax impact on our lives than marriage. Below is a brief overview of the most important changes resulting from marriage in german law.
Legal consequences of marriage in Germany
- Assets and debts: Marriage itself generally does not result in any shifting of assets in Germany. Each person keeps the assets that he or she had at the time of marriage for himself or herself. Even during the marriage, assets are generally accumulated separately. Compensation for inequalities in asset growth during the marriage only occurs when the marriage ends due to divorce or death. For more information, see the section on "Equalization of gains" under the consequences of divorce in german law. The separation of assets also means that one spouse is not liable for debts incurred or caused by the other spouse alone.
- Restrictions on transactions: One consequence of the legal matrimonial property regime of community of gains is the restriction that one spouse, if he or she wishes to dispose of his or her assets as a whole, requires the consent of the other spouse to do so in Germany. If larger assets such as companies or real estate, which make up a significant part of the assets of one spouse, are to be sold, the consent of the spouse should not be missing from the (notarized) contract. The same applies to the disposal of objects belonging to the household. Such dispositions can also be (pending) invalid without the consent of the other spouse under german law.
- Maintenance: Even if maintenance disputes regularly only escalate to the point of ending up in german court in the case of separated or divorced couples, there is already a mutual obligation to pay appropriate maintenance from the time of marriage. The claim relates to the costs of daily necessities, the means for household management and the personal needs of the spouses and children. This duty applies to all models of life and role distributions in Germany, so that the payment of maintenance can be made both by earning income through work and by running the household. If one of the spouses does not earn any income at all because, for example, he or she looks after small children and takes care of the household, the earning partner must pay him or her an allowance.
- Marriage name: Spouses in Germany can keep their names or determine a common marriage name. However, the partner who does not assert his or her own birth name in this choice may prefix or append it as a so-called companion name.
- Children, custody: If a married woman in Germany gives birth to a child, the husband is legally considered the father - even if he is not biologically the father. The married parents are then entitled to joint custody under german law. A custody declaration or court decision is not required for this in Germany. If a couple brings a child into the marriage and until then only the mother was entitled to custody because she had not made a corresponding declaration on joint custody, both spouses are entitled to joint custody from the time of the marriage.
- Child's name: If the child initially had the mother's name in the case of an initially unmarried couple, it is given the married name as its birth name when the parents marry. If there is no married name, the parents are free to determine the child's name.
- Pension, widow's pension: Pension rights acquired during marriage legally belong to the spouse who acquired them. In the event of divorce, the so-called pension equalization takes place by german law. If one spouse dies, the surviving partner may be entitled to a widow's or widower's pension.
- Statutory inheritance quota and right to a compulsory portion: Whereas the partner dies empty-handed without a corresponding will, the spouse is the legal heir in Germany. His or her legal inheritance quota depends on whether the other person still leaves children and/or other relatives at his or her death and on the matrimonial property regime under which the spouses lived. More information: German inheritance law in the case of marriage
- Spousal will: Only spouses are legally allowed to make a joint will. The most common spouse's will is the so-called Berlin will, in which the spouses appoint each other as sole heirs and the joint children as final heirs of the last to die. In detail, this classic Berlin will is quite complex. In particular, the "whether" and "how" of a binding effect and the coupled possibility of the longer-living spouse to still change the will before the second inheritance should be carefully examined and formulated accordingly. More information: Berlin Will
Taxes, social security in Germany
In addition to legal characteristics, many tax regulations also differentiate between married and unmarried couples. In german tax and social security law, the constitutional mandate to protect marriage and family comes through. Detailed information on some tax advantages and structuring options in Germany can be found here: Tax savings model family.
- Marital splitting: The largest - and now politically controversial - tax advantage most married couples in Germany receive is through so-called marital splitting. Married couples have the option of being assessed jointly for income tax purposes. For this purpose, the taxable incomes of husband and wife are first added together and then halved (split). The income tax is calculated from this half amount, which is then doubled again. Especially for couples in Germany where one earns little and the other earns a lot, this pays off, since both basic tax allowances can be fully utilized and the couple as a whole does not have to pay such high tax rates. If both spouses earn roughly the same amount, spousal splitting brings no or only small tax advantages.
- Family insurance: If you are a member of a statutory health insurance scheme in Germany, you can insure your spouse and children free of charge. However, the co-insured family members must not be subject to health insurance themselves, i.e. their income must not exceed 6,460 euros or 5,460 euros for mini-jobbers.
- Allowance: If a spouse is a civil servant, his or her partner is considered an "eligible relative" from the time of marriage. Their expenses for health insurance are eligible for assistance for civil servants. Here, too, certain (regionally different) income limits apply in Germany.
- Inheritance tax, gift tax, real estate transfer tax: Transfers of assets during one's lifetime or in the event of death that are made without consideration are subject to inheritance tax or gift tax. In principle, this also applies to married persons. However, while non-married persons only have a tax-free allowance of 20,000 euros for gifts and inheritances and tax rates of between 30 and 50 percent apply to gifts in excess of this amount, married couples have a personal tax-free allowance of 500,000 euros and are "only" subject to tax rates of between 7 and 30 percent for acquisitions in excess of this amount. In addition, spouses in Germany are entitled to a pension allowance of 256,000 euros in the event of death. During their lifetime, one spouse may even transfer the owner-occupied "family home" to the other tax-free - regardless of its value. If a property is not given away or inherited between spouses, but sold by one to the other, no real estate transfer tax is due - unlike in the case of mere cohabitants. More information: Inheritance tax, gift tax in Germany
And what if you end up divorcing?
Anyone who deals with the consequences of marriage must also take a look at the consequences of divorce in Germany. This is probably justified by the statistical divorce rate itself - which, despite a decline in recent years, is still over 30 percent. Since couples naturally have a less harmonious relationship in the event of separation or divorce than in times of an intact marriage, legal claims in the event of divorce are also enforced accordingly out of court and also in german court by divorce lawyers and decided by german family courts.
- Equalization of gains: If one of the spouses achieves a greater increase in assets during the marriage than the other, this excessive gain must be equalized in the event of divorce under german law. In this case, the equalization of accrued gains amounts to half of the difference between the accrued gains of one partner and those of the other partner. More information: Equalization of gains in german law
- Pension equalization: Pension benefits are equalized in a similar way to marital gains. Entitlements from statutory pensions, pensions and certain private pension products are then added together and divided in the event of divorce. Further information: Pension equalization
- Post-marital maintenance: If one of the ex-spouses is in need after the divorce and the other is able to pay, post-marital maintenance claims arise in Germany. Circumstances that can give rise to an obligation to pay alimony are, for example, the care of a joint child, unemployment or even old age or illness. Further information: Postmarital maintenance
- German inheritance law, wills: With the divorce, the divorced spouse loses his or her legal right to inheritance and also any associated claims to a compulsory portion. In case of doubt, a testamentary bequest to the spouse becomes invalid upon divorce. To be on the safe side, however, it is essential to make a new will. In addition to these consequences of divorce relating to assets, there are other aspects of divorce in Germany, in particular questions of custody and access rights in the case of joint minor children. More information: German inheritance law in divorce
Conclusion - do the advantages or disadvantages of marriage outweigh the disadvantages?
From the point of view of a german tax advisor, marriage should generally be viewed positively due to the tax privileges for spouses and advantages with regard to social security. The advantages are greatest for couples with children and a classic life model in which one earns little and looks after the children and the other earns a higher income full-time. In this case, marriage can bring up to 10,000 EUR more in disposable income per year in Germany. For childless dual earners, on the other hand, marriage is generally not a tax-saving model. However, this only applies during one's lifetime, because in the event of death, only the spouse enjoys significant inheritance tax allowances, while the inheriting partner is asked to pay extra. From a germsn lawyer's point of view, the view must be more differentiated. From a legal point of view, marriage entails numerous risks, most of which are realized in the event of divorce. However, risks for one spouse often also mean opportunities for the other spouse. In german practice, the restrictions of the community of accrued gains on the transfer of assets play only a minor role. Especially with joint children, marriage often makes everyday life easier.
If one of the spouses has a foreign nationality, a foreign residence or if the marriage was entered into abroad, the rules of international family law must be observed.
In the case of divorce, the legal regulations lead to good solutions for some spouses. They are based on a pronounced understanding of marriage as a community of solidarity: It is shared. Joy and sorrow, love and happiness cannot be measured, quantified and balanced out, but assets can. Do couples want this unconditional solidarity? Or should aspects of performance justice also be taken into account? Does one become existentially dependent on the other, or does one wish to avoid this? Is a marriage contract the right way and what could such an agreement look like? Sensitive counseling and enough time are beneficial so that any negotiations about a prenuptial agreement do not become a dress rehearsal for divorce, which hopefully never happens.
There is no institutional counseling and education on the legal consequences of marriage in Germany. It is advisable for each couple to take advantage of such counseling, possibly independently, on their own responsibility and to make joint decisions for their own marriage based on complete information, solid knowledge and accurate analysis of common and conflicting interests. If the interests of one spouse are to be particularly protected by the contract, "partisan" legal advice is indispensable.
This applies in particular to couples in Germany in which at least one partner brings considerable assets into the marriage, is active in business with his or her own company or as a partner, or also has divergent ideas about assets and security through financial freedom. Valuable real estate and companies in particular are at risk of being liquidated or broken up in the event of divorce if this is not regulated differently in a prenuptial agreement. A prenuptial agreement requires notarization by german law. Especially in the case of interventions in the german property law, the contract should also be checked by a tax advisor in order to avoid undesirable tax consequences.
For a non-binding inquiry, please contact one of our experts directly by phone or e-mail or use the contact form.
- Dr. Marko Oldenburger, specialist lawyer for family law in Hamburg
- Sybill Offergeld, specialist lawyer for family law in Berlin
- Meltem Kolper-Deveci, specialist lawyer for family law in Munich