For a compulsory portion penalty clause in a so-called Berlin will to be valid, third parties must actually inherit something. If this is not the case, they do not face any sanctions. This has now been decided by the Higher Regional Court (OLG) of Frankfurt am Main (decision of 21.2.2023, 21 W 104/22).
In the present case, the husband and wife appointed each other as their sole heirs. The husband had two daughters from his previous marriage, the wife one daughter. The daughters were each to receive 1/3 of the inheritance after the death of their parents. The exception was "the child who claimed and received a compulsory portion".
After the death of her mother, the woman's daughter applied for a certificate of inheritance which was to show her and one of her stepsisters as heirs in ½ each. In her opinion, her other stepsister would have been excluded as an heir, since she had already claimed her compulsory portion after the death of her father. However, according to the daughters, this had been 'equal to zero'. The OLG ruled that the third daughter had not forfeited her claim to inheritance, since she had also received nothing.
Source: ordentliche-gerichtsbarkeit.hessen.de/decision of 21.2.2023, 21 W 104/22
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