Verdict: The home as a private long-term care insurance

Verdict: The home as a private long-term care insurance

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BGH clarifies the question of a gift to the potentially caring daughter
It is a widespread private generation contract: against the promise of lifelong care, one of the children gets their parents' home. Here it roughly depends on the value of the mutual benefits at the time the contract is concluded, whether the siblings then go out teaching, the Federal Court of Justice (BGH) in Karlsruhe decided in a judgment published on Friday, October 14, 2016 (file number: IV ZR 513/15). Afterwards, it doesn't matter whether the parents actually need care later.

In the event of a dispute, the parents had initially acted as heirs. After the survivor's death, the daughter and son were to share the inheritance.

Four years after the mother's death, the father now transferred the family home to the daughter. In return, he was given a lifelong right of residence (so-called usufructuary right) and, under certain conditions, the option to withdraw from the gift. The daughter also undertook to "care for and care for his father completely and free of charge in his apartment during his life in healthy and sick days, but only if necessary, or to have him cared for and looked after free of charge".

The father died over 13 years later at the age of 84 without ever needing care. The daughter sold the house and property for 120,000 euros. With his lawsuit against the sister, the son who left empty handed demands half of it for himself. After all, the parents would have agreed on this together.

The district court and the Berlin district court agreed with the son. After all, the father was never in need of care. Contrary to the binding common will of mother and father, the son was passed over in the house inheritance.

After the Karlsruhe judgment, it is quite possible that the son was wrongly ignored - but probably not in the amount of half the sales.

The father was entitled to now dispose of the former marital property alone. This is legitimate as long as he has an interest in it. This also included hedging your own nursing risk and the interest in tying a close relative to you. The father must not deliberately damage the children as heirs.

The BGH emphasized that “a lifelong self-interest does not necessarily have to be assumed for the entire gift item”. This could be a “mixed gift”, with which the father pursues legitimate interests on the one hand, but on the other hand may have given the daughter a gift that goes beyond this, possibly also unjustly ignoring the son in deviation from the binding parental community will.

The time of the conclusion of the contract is decisive. Therefore, it does not matter whether the father actually needed care. Rather, the decisive factor is the value of the daughter's promise to care at the time of the gift, as a kind of private care insurance. The right of usufruct should also be taken into account - not with the actual life expectancy, but with the life expectancy to be statistically expected at the time of the gift. In addition, a discount for the father's right of termination comes into consideration here.

These things are then not necessarily exactly to be counted with the value of house and land, according to the Karlsruhe judgment. Rather, it comes down to an appreciation of all circumstances. So the father was allowed to "let something cost" the agreement with and the bond with his daughter. Conversely, the son could possibly provide evidence that his father wanted to deliberately disadvantage him and that there may be other reasons behind the gift to the daughter that do not appear in the contract between the father and daughter.

According to these requirements, the Berlin Higher Regional Court should now re-examine the dispute, according to the BGH in its judgment of 28 September 2016, which has now been published in writing

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