HomeFamilyFoster children receive more from the estate

Foster children receive more from the estate

For more than ten years, a son has been caring for his mother, who is increasingly suffering from dementia. First in the parents’ house, later he takes her in with him. After her death, he quarrels with his three siblings over the estate. The conflict goes as far as the Higher Regional Court of Frankfurt am Main (Az. 13 U 31/18). For his care, he demands a higher share of the inheritance compared to his siblings. The court decides in his favor and awards him 40,000 euros from the estate – which is around 166,000 euros. His claim arises from the Civil Code. In the event of inheritance, this provides for compensation for caregiving relatives. In practice, this is often complicated.

Our advice

family council. Discuss early on in the family who will take over care of the mother or father if care is needed. Realize that this person may need to cut back on their job and personal life. Think together about how to reward their performance.

Document. If you are caring for your parents and want compensation for this, you must prove how you supported your mother or father. The best way to do this is with a detailed and complete care protocol.

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Compensation. If you are mainly cared for by one of your children and you want to avoid disputes between your heirs, agree an appropriate care allowance with your child. You can also use the care allowance for this, which is paid by the care insurance fund, provided you have a care level of 2 or higher. You can find out everything about the benefits of social long-term care insurance in our long-term care insurance study: when it pays and what it costs

Testament. You can also prevent disputes with a will. In it you can specify what your child should receive as compensation from the estate. In our fee-based study Will: How to regulate your inheritance according to your wishes, we explain how to write a will, what you should consider when doing so and how to avoid disputes between your heirs.

Often quarrels among the bereaved

As in the Frankfurt case, conflicts often arise among the bereaved when only one child was cared for by the mother or father and in return demands a higher share of the estate from the siblings or other heirs. Ralf Mangold, a specialist lawyer for inheritance law in Cologne, knows this from experience: “The obligation to compensate often plays an above all emotional role in communities of heirs and unfortunately happens frequently.” It is not about giving caregiving relatives an advantage at the expense of other family members. Rather, the statutory right to compensation is intended to compensate for disadvantages if, for example, one’s own job is given up in whole or in part for the purpose of care. The old-age provision of caregivers also falls by the wayside if someone permanently steps down from their job.

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Compensation for care only for children and grandchildren

The requirements for the right to compensation are narrow. Not everyone who has cared for a loved one at home can make such a claim. The law privileges only direct descendants of the deceased person. These are mainly children, but also grandchildren if the parent entitled to inherit is no longer alive.

Spouses, parents and other relatives as well as friends and acquaintances get nothing – even if they have devotedly cared for relatives for years.

More nursing support than usual

The Federal Court of Justice has determined when caring children can demand compensation from their co-heirs at all. “In terms of intensity, the care and support of those in need of care should go beyond normal and customary support services in a parent-child relationship,” explains Mangold. “In addition, the caregiver must prove that he has cared for a certain period of time.” Whether the benefits of the daughter, granddaughter or son went beyond the usual and there is a claim to a compensation payment and in what amount – this usually ignites the dispute in communities of heirs .

Court weighs interests among heirs

If such a conflict ends up in court, the scope and duration of the care on the one hand and the value of the estate and the financial interests of the co-heirs on the other are weighed up. In addition, an important role is played by whether the care services provided by the defendant made a significant contribution to preserving the value of the estate.

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In the case decided by the Frankfurt am Main Higher Regional Court (see above), this question was decisive for the verdict. The necessary placement of the mother suffering from dementia in a nursing home would have been unavoidable without her son caring for her and would have significantly reduced the value of the estate.

Care must be accurately documented

In order to enforce the right to a compensation payment, the caring relative must prove their activity, the scope and the duration. All this can best be recorded with a detailed care protocol or care diary. This should include:

  • dates and times,
  • the individual services per day,
  • times for care,
  • Expenses (evidence of costs such as invoices and receipts).

It would be good to have the documentation, for example about the hours worked, confirmed by a signature, for example from your spouse. Even better, the resident signs the protocols themselves.

Calculating the compensation amount is complicated

If the documentation shows that the caring relative is entitled to a compensatory payment from the estate, the heirs must agree on the amount. There is no statutory calculation basis for a corresponding remuneration for care. That harbors the potential for conflict. Precisely because the courts have so far not shown a uniform way for the amount of the claim, disputed heirs should better consult a specialist lawyer for inheritance law for the negotiations.

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Claim for compensation reduces inheritance

Once the amount has been determined, it will be deducted from the estate before it is divided among the heirs. Close relatives who are not heirs but are entitled to a compulsory portion of the estate also receive less due to the deduction of the compensation payment. If the heirs cannot come to an agreement, a court must decide. The amount of the compensation payment is at the discretion of the court and depends on the individual case.

Testators can avoid disputes with a will

One process can be avoided: testators in need of care can regulate during their lifetime whether and in what form the child cared for should receive compensation for their help. The best way to do this is by will. “Parents can explicitly leave more to a child as thanks for the care,” says Mangold. Other people who provide care can also be considered accordingly in the will – even if they are not your own children. Testators can also specifically exclude the statutory obligation to compensate in order to prevent a dispute among the heirs after their death. In this case, it makes sense to pay the caring relative an appropriate, salary-like compensation for the caring work while they are still alive.

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However, if a child receives an appropriate payment for its care, it can no longer claim compensation in the event of the death of the person in need of care.

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