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.

During a trip to the national team at the beginning of November, he had contact with a club colleague who had tested positive for Corona. As a result, he had to go into domestic quarantine and was not allowed to participate in the upcoming matches of the national team and his club. Due to a later further contact with a person who tested positive in his private environment, Kimmich’s period of quarantine was renewed.

The footballer’s employer, FC Bayern München, subsequently decided to dock Kimmich’s pay and that of other colleagues who had not been vaccinated for the duration of the quarantine ordered by the authorities. The measure was intended to increase the pressure on the remaining unvaccinated players in order to prevent individual players from being regularly unavailable to the employer for assignments in the Bundesliga or Champions League.

From a legal point of view, the question arises whether it is lawful for employers to act in this way towards their employees.
The German Civil Code (BGB) stipulates that employees who do not perform their work do not receive a salary.
However, the Infection Protection Act (Infektionsschutzgesetz, IfSG) stipulates that those who have to go into quarantine by order of the authorities should not be subject to any loss of wages. Affected workers are therefore paid monetary compensation.

However, the IfSG has an exception since summer 2020. According to this, no monetary compensation is paid to anyone who could have avoided quarantine by taking advantage of a vaccination that was publicly recommended in the area of the affected person’s usual place of residence. Kimmich could therefore have avoided his quarantine by taking advantage of a Corona vaccination. There is therefore a legal basis for not paying the salary for the period of quarantine for unvaccinated persons.

In the meantime, it has become known that the footballer Kimmich is actually currently ill with Corona. Kimmich, and workers in general, whether vaccinated or not, will receive compensation for this period of absence from work through continued payment of wages in the event of illness.

Author: Patrick Stumpp

Der Beitrag No salary for unvaccinated people in quarantine 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.

The case before the Higher Regional Court concerned a father (testator) with two sons. In March 1996, the father concluded an inheritance and compulsory portion waiver agreement with the first son (plaintiff) and appointed the second son (defendant) as his sole heir in a will in April 1996.

Many years later, in August 2009, the father and the first son concluded another notarised contract in which both declared in agreement to annul the contract of March 1996. When the father died in 2017 and was undisputedly inherited by the second son alone on the basis of the will of April 1996, the first son claimed the compulsory portion against his brother as sole heir.
The sole inheriting brother (defendant) refused the compulsory portion on the grounds that the termination agreement of August 2009 was invalid because the father had no longer been legally competent at that time, citing examinations of his father in 2003 and 2004, in which a neurologist had diagnosed mnestic deficits in the father, as well as further examinations by a neurologist in January 2009, in which the father was diagnosed with moderately pronounced dementia with Alzheimer’s disease.

The first son (plaintiff), on the other hand, refers to the notarial termination agreement of August 2009 and argues that the notary – as can be read at the beginning of the document – had convinced himself first-hand of his father’s legal capacity in the course of the notarisation, so that there could be no doubt about this. The father knew about the significance of his declarations before the notary. The termination agreement of August 2009 was therefore effective and his waiver of the compulsory portion of March 1996 was therefore irrelevant.

The Higher Regional Court upheld the second son, the sole heir, and dismissed his brother’s action for information and payment of the compulsory portion. In doing so, the court essentially dealt with the evidentiary value of the notary’s finding on the father’s capacity to contract and stated in this regard that a psychiatric specialist qualification is required for the assessment of the medical prerequisites of the capacity to contract/test. According to the court, a notary does not have the necessary medical expertise to assess the extent of a dementia disease. His testimony, as well as the testimony of other persons who were in social contact with the testator during the period in question, had no particular probative value due to the lack of professional qualification.

Conclusion: If the testamentary capacity is to be proven with certainty, neither a confirmation of the notary nor the certificate of the family doctor is sufficient. What is required is a diagnosis by a neurologist.

Author: Dr Klaus Krebs

Der Beitrag On the effectiveness of statements on testamentary capacity erschien zuerst auf Rechtsanwälte Seidler & Kollegen.

In the event of a company closure due to a general lockdown ordered by the state, the employer is not obliged to continue paying wages.
The Federal Labour Court (Bundesarbeitsgericht, BAG) has ruled that a mini-jobber is not entitled to wages if she was unable to work due to the pandemic-related official closure order (Urt. v. 13.10.2021, Az. 5 AZR 211/21).

The employer operates a trade in sewing machines and accessories. The plaintiff has been employed as a marginal employee at the branch in Bremen since October 2019. The monthly wage amounts to € 432.00. As of April 2020, the shop was no longer allowed to open due to the general lockdown. The company then introduced short-time work for some employees.

This was not possible for others – such as the employee who later filed the complaint. As a marginally employed person in a mini-job, she could not receive short-time work benefits due to the lack of legal requirements. The employer therefore did not pay her wages for the lockdown period in April 2020. The employee now sued for continued payment of wages. She based her legal opinion on the fact that the closure of the business due to official orders was a case of operational risk to be borne by the defendant as employer. Operational risk is understood to mean that the employer must pay its employees their wages even though it cannot employ them.

After the first two instances had ruled in favour of the plaintiff, the Federal Labour Court has now dismissed the action. The court did confirm that the principles of operational risk should not be changed. However, the court was now of the opinion that the employer did not bear the risk of a loss of working hours if, in order to protect the population from serious and fatal courses of disease, official orders closed down all facilities not necessary for the care of the population almost nationwide. This situation did not concern the operational risk inherent in a particular enterprise. Rather, the impossibility of work was the consequence of a sovereign intervention to combat a dangerous situation affecting society as a whole. However, the employer was not liable to pay for this.

The court thus clarified that if nationwide plant closures for reasons of health protection affect society, employers and employees as a whole equally as a sovereign act, the financial consequences are also not to be borne by the employers.

The Oberbadische Zeitung

Der Beitrag No obligation to continue to pay wages in the event of a Corona lockdown erschien zuerst auf Rechtsanwälte Seidler & Kollegen.

Timely succession planning can help here. Several variants are conceivable. If all of the aforementioned persons are to be considered, the community of heirs, which is prone to disputes, can be avoided by designating one heir in a will, e.g. the second wife as the husband’s heir, and the other persons, i.e. in particular the children from the husband’s first marriage, with legacies. In the same will, the wife names the joint children as her heirs – depending on their age, possibly under execution of the will – and provides the husband with a legacy, e.g. usufruct of the house. The advantage of this is that the wife’s assets are not transferred to the husband in this way. Otherwise, the husband’s children from his first marriage would participate in his estate upon his death, e.g. by asserting claims to a compulsory portion.

Another variant is to provide for the children from the first relationship with advance gifts in such a way that in the event of inheritance their claims, in particular claims to the compulsory portion, are covered or at least greatly reduced. This can be achieved by always giving gifts with the verifiable stipulation that this will be done by offsetting against compulsory portion rights.

The most certain way to ensure that children from other relationships no longer interfere with the estate planning is to waive the compulsory portion of these children. Such a waiver must be notarised once the modalities have been determined. Experience shows, however, that no waiver of the compulsory portion is made without consideration, i.e. the waiving child will demand money for his or her waiver. How much that is remains a matter of negotiation. The current amount of the claim is only one criterion.

It is also conceivable that the relationship with the child or children from the first marriage has cooled down for whatever reason and they are not to be considered at all, not even within the framework of a waiver of the compulsory portion with settlement. In this case, there are some pitfalls to be aware of.
It would be too short-sighted for the spouses to appoint each other as heirs. For if the second spouse dies, this would not give rise to any claims on the part of the children of the longer-lived spouse from his or her first marriage, because there is no relationship of kinship between the testator and these children.
The problem, however, is that the assets now accumulate with the longer-living spouse with the consequence that – if he or she dies later – his or her children from the first marriage participate in this large estate with their compulsory portion claims.
The other way round is not without problems either: if the partner with children from the first marriage dies first, their compulsory portion claims can be very high and cause the asset situation of the longer-living partner to falter.
Which measures are to be used to counteract this is always left to an examination of the individual case.

Author: Dr Klaus Krebs

Der Beitrag Wills for the second marriage erschien zuerst auf Rechtsanwälte Seidler & Kollegen.