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 penalties. 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 this case, the husband and wife appointed each other as sole heirs. The husband had two daughters from his previous marriage, the wife had one daughter. The daughters were to each 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 designate her and one of her stepsisters as heirs in the amount of ½ each. In her opinion, her other stepsister would have been excluded as an heir as she had already claimed her compulsory portion after her father's death. However, according to the daughters, this was 'zero'. The third daughter had not forfeited her inheritance claim as she had not received anything either, the OLG ruled.
Source: ordentliche-gerichtsbarkeit.hessen.de/decision of 21.2.2023, 21 W 104/22
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