Reserved Usufruct and Gifts: a Problem for the Ten-Year Period?

Three ten-year periods apply to gifts with a reserved usufruct under German law. For gift tax, § 14 ErbStG runs from execution of the gift (entry in the land register) regardless of the usufruct; the capitalised value of the usufruct reduces the taxable base. For forced shares, § 2325 para. 3 BGB generally does not start where a comprehensive usufruct is reserved, because the deceased has not given up enjoyment of the asset (Federal Court of Justice). Against the social welfare authority, §§ 528, 529 BGB and § 93 SGB XII apply the same concept of surrender. Conflict of objectives between tax saving and forced-share reduction; intermediate routes are a usufruct limited in time, a partial usufruct or a later waiver. For property in France: usufruit and nue-propriété, allowance of EUR 100,000 per child every fifteen years, applicable law under the EU Succession Regulation.

Kontakt

Rechtsanwalt Dr. Vincent Stelzhammer, LL.M., Maîtrise en droit

Achenbachstr. 132, 40237 Düsseldorf

E-Mail: vincent@stelzhammer.legal