It is common that ownership of real estate is to be transferred between spouses for inheritance reasons. Usually it is the husband from whom property is to be transferred to his wife and not often the husband’s children from a previous relationship are the reason for this deision. The motivation for this is quite clear: the husband wants to protect his wife from excessive claims to a compulsory portion by his children from the previous relationship in the event of his death.

However be careful: As soon as the transfer is legally to be regarded as a gift or as a mixed gift, it fails to achieve its objective. One speaks of a mixed gift if one part of the legal transaction is combined with payment and another part is not. An example: The husband “sells” his real estate for 150,000, – € to his wife, while the actual market value of the real estate lies with 230,000, – €. In this case a mixed donation of 80.000, – € is present!

Tricky with donations between married couples is the fact that these donations are added obligation-legally to the estate of the sometime later dying  husband and without temporal restriction. This is a very important point to be considered,  the legal situation is clear. Whereas in the case of other gifts by the husband to persons other than his wife, the 10-year period applies and the principle of amortization applies, in the case of gifts between spouses this period only runs from the dissolution of the marriage, i.e. in this case from the death of the husband, which does not benefit the wife at all.

Thus, the aim is to avoid gratuitousness in legal transactions between spouses with such a background. This is not always possible and not always complete, but most of the time it is. One possibility is the reservation of the husband’s rights of use. For example, if the husband reserves the usufruct of the property, this significantly reduces the amount of the gift. This is because the value of the usufruct is capitalized, i.e. converted into money, and deducted from the value of the property. The calculation of the value of the usufruct is based on the statistical life expectancy of the transferor, i.e. the husband, which in turn means that the earlier the gift is made or the younger the transferring husband is, the more it can be reduced. Another possible starting point in this context is to obtain a competent expert opinion on the value of the property. Such an expert opinion is advisable for the sole reason of having clarity and provability for a value that may not be relevant again until many years later, namely after the husband’s death. If one has not taken precautions by means of an earlier expert opinion, the dispute is pre-programmed and the need for proof that the value of the property, which may have been transferred decades ago, was actually so low, is high.

There are other ways and means to reduce gifts between spouses or to bring them down to zero altogether. What makes sense in a particular case and what should be avoided at all costs is always left to the examination of the individual case and the creativity of the legal advisor. From our own experience, the involvement of the client’s tax advisor is always advisable in such cases, so that the final arrangement is examined from both a civil law and a tax law perspective and holds up.

Author: Dr. Klaus Krebs

Der Beitrag Transfers of real estate between spouses erschien zuerst auf Rechtsanwälte Seidler & Kollegen.

The plaintiff had applied for a place to study human medicine at a private, state-recognized university. According to the study regulations, a six-month internship in nursing is a prerequisite for admission to the course. The applicant had completed the internship in a hospital. Payment of remuneration was not agreed. In her lawsuit, the applicant claimed remuneration totaling 10,269.85 EURO, citing the Minimum Wage Act. She claimed that she had worked 7.45 hours a day in a five-day week.

She argued that such a preliminary internship was not a mandatory internship within the meaning of the Minimum Wage Act (MiLoG). For this reason, the statutory exception from the obligation to pay did not apply.
Like the Rhineland-Palatinate Regional Labor Court, the BAG did not consider the personal scope of application of the Minimum Wage Act to be open. The exclusion of claims to the statutory minimum wage pursuant to Section 22 (1) Sentence 2 No. 1 MiLoG covers not only mandatory internships during studies according to the intention of the legislator clearly expressed in the explanatory memorandum to the Act.

It also covers mandatory internships that are prescribed in study regulations as a prerequisite for taking up a particular course of study, which means that they must already have been completed before the start of the course. According to the BAG, the fact that the study regulations were issued by a private university does not prevent the claim, because the university is state-recognized.

This means that the access requirement issued by the university is equivalent to a regulation under public law. This ensures that the internship requirement in the study regulations does not unlawfully circumvent the fundamental entitlement to the statutory minimum wage for interns.

As a result, the plaintiff is therefore not entitled to payment on the basis of the minimum wage.

Author: Patrick Stumpp

Der Beitrag No minimum wage for mandatory internships erschien zuerst auf Rechtsanwälte Seidler & Kollegen.

As a rule, the determination of the heirs of the two spouses in such a will is identical. The spouses appoint each other as sole heirs and the children as so-called final heirs (not subsequent heirs – be careful with the choice of words!) of the longer living spouse, regardless of who this is. If necessary, there are also legacies, a penalty clause for a compulsory portion, a so-called super legacy (yes, that’s really what it’s called), division orders, possibly an execution of the will, as well as regulations on the consequences of a divorce, a remarriage and the binding of the longest-living spouse to the regulations made or his or her release from them. So far, so good.

However, it is often overlooked in the case of joint wills of married couples that things can or rather should go differently, for example if there are children from different relationships. If this is the case, there is often an (understandable) desire to structure the inheritance of the children differently and to make it dependent on who the children are from. For example, if the husband has two children from a previous relationship and, together with his current wife, has one child in common, and there is a good relationship with all three children, it is possible that (1) the husband and wife may wish to provide for each other and (2) the wife may wish to transfer as much of her estate as possible to the child in common upon her death.

One way to achieve these goals is through a pre- and post-heirship, in which the decedent inherits his or her assets twice (also inherits twice for tax purposes!), first to the pre-heir and, normally, to the post-heir(s) upon the pre-heir’s death. However, I do not consider the pre- and post-inheritance to be a suitable means for such cases. In addition to the tax disadvantages, this arrangement, which is complicated in theory and practice, has considerable disadvantages for the preheir, who is not permitted to do many things, and it presents extremely difficult legal problems when it comes to its subsequent (even partial) cancellation, even if the preheirs and the postheirs agree among themselves. In my own estate planning, I only use the predecessor and successor inheritance in conjunction with an execution of the will in the case of a will for the disabled and a will for the needy, where it is fully justified for other reasons.

In the cases described here, it makes more sense to work with different successions for the two spouses. It would be possible, for example, for the wife to appoint the joint child as her sole heir and – if the child is still younger – to appoint her husband as executor. At the same time, she bequeaths to her husband the household effects, the inventory, the personal effects and the possibility of using the joint property or, more precisely, her co-ownership share in it.

In return, the husband can proceed in a mirror image, but does not only appoint the joint child as his heir, but all three children. Whether further assets are also transferred to the other spouse via the bequests in favor of the other spouse, such as a certain amount of money or a bank account, depends on whether and to what extent the longer-living spouse can support himself or herself financially.

Author: Dr. Klaus Krebs

Der Beitrag Wills of spouses with different successions erschien zuerst auf Rechtsanwälte Seidler & Kollegen.

The ruling of the Federal Labour Court of 25 November 2021 was based on a case in which a municipality wanted to fill a management position in the legal and municipal office.
The plaintiff, a lawyer, had applied for the position in 2017, citing his severe disability, but had not received an invitation to an interview. He was only informed that the municipality had decided in favour of another applicant.

The man then sued for compensation because he felt discriminated against on the grounds of his severe disability due to the lack of an interview. After the plaintiff had been unsuccessful in the first two instances, the Federal Labour Court now confirmed his view. The municipality should not only have invited the lawyer to an interview because of his severe disability, but should also have notified the Federal Employment Agency of the vacancy in good time in accordance with the procedural regulations.

The municipality had not fulfilled both obligations. The fact that the Federal Employment Agency was later prompted by the employer to publish the vacancy on the job exchange could not undo the failure to notify early. The Federal Labour Court therefore ordered the municipality to pay the plaintiff appropriate compensation for the violations of the General Equal Treatment Act (AGG).

Among other things, the AGG places severely disabled persons under special protection. Disadvantages are to be prevented or eliminated. Public employers also have special obligations towards severely disabled persons. These include, for example, the obligation to invite them to an interview if the applicant’s professional aptitude is not obviously lacking (§ 165 SGB IX). With this ruling, the Federal Labour Court has once again clarified that violations of procedural or promotional obligations are to be sanctioned by means of compensation or damages under section 15 AGG.

Author: Patrick Stumpp

Der Beitrag Discrimination of severely disabled persons due to procedural errors erschien zuerst auf Rechtsanwälte Seidler & Kollegen.