PRACTICE AREA
Family law for business owners in Cologne and throughout Germany
What happens to your business when something changes in your private life rests on several documents: a prenuptial agreement or a separation and divorce settlement agreement, the will and the articles of association. These documents were usually drawn up at different times and by different advisers, without anyone ever checking how they work together. I help you align these documents with one another, so that your private intentions and the structure of your company fit together properly.
TOPICS
The topics in family law for business owners:
where I advise you in detail
Matrimonial property law and business succession: why separation of property is rarely the best solution
Separation of property solves the valuation problem – and creates a new one
At first sight separation of property looks like the obvious answer to the valuation problem: no equalisation of accrued gains, no argument about the value of the business in a divorce. What is frequently overlooked is what it sets off on death. Where the spouses lived in the community of accrued gains, the surviving spouse's statutory share of the estate is increased by a flat quarter. If that increase falls away with separation of property, the spouse's share becomes smaller – the children's shares grow, and with them their compulsory shares.
The compulsory share confers no participation in the business; it is a claim for money against the heir amounting to half the value of the statutory share of the estate (section 2303 German Civil Code). That claim grows with the value of the company, it falls due in euros, and it has to be found by whoever carries the business on. Anyone who chooses separation of property in order to keep the business out of the divorce may therefore aggravate precisely the liquidity problem they wanted to avoid on death.
The modified community of accrued gains: the better fit for most business owners' marriages
Between the full community of accrued gains and separation of property lies an instrument that is used too rarely in practice: the modified community of accrued gains. By prenuptial agreement the business – or only the increase in its value over the course of the marriage – can be taken out of the equalisation of accrued gains without giving up the property regime as a whole.
The effect: the valuation problem for the business is solved for the divorce, because that asset simply does not enter the equalisation calculation. At the same time the community of accrued gains remains in place as the property regime – with the result that the spouse keeps the additional quarter under inheritance law and the children's compulsory shares do not grow automatically.
For most business owners' marriages that is the economically sounder solution: it takes the explosive issue of company valuation out of the divorce without opening up new fronts between spouse and children on death.
A will can fail on the succession clause in the articles of association
In partnerships it is the partnership agreement that decides first who may succeed. Where it contains a qualified succession clause and the will appoints someone that clause does not permit, the result is regularly not a partner's position but a claim to compensation. And that claim burdens precisely the business that was supposed to be protected.
In corporations shares are in principle inheritable, but redemption, assignment and transfer-restriction clauses likewise cut into what the will provides for. That is why I read the articles of association before drafting any business owner's will. I cannot change them, but I can check whether the testamentary disposition can work within them at all.
Transferring to the successor child echoes for ten years
Transferring shares early is often right, but it does not shake off the compulsory share immediately: a gift is taken into account in full within the first year before the death and by one tenth less for each further year, and only after ten years is it left out of account entirely (section 2325(3) German Civil Code).
For gifts to a spouse this period only begins when the marriage ends – a circumstance that in effect undoes the ten-year calculation for transfers made during the marriage.
A separation in the middle of a succession hits both levels
The equalisation of accrued gains works with values that have long been earmarked for the succession. If the shareholding has already been transferred to a child, it can appear in that child's accrued gains as soon as the child separates in turn. If it stays with the transferor, it appears in their final assets.
Both can be caught by agreement – in the transfer agreement as much as in the successor's prenuptial agreement – but only in advance, while the marriage is still intact.
Where the separation has already happened: the separation and divorce settlement agreement as a safety net
Where that provision is missing, or the separation is already a reality, all is not lost. A separation and divorce settlement agreement can order access to the business after the event as well – still during the period of separation or in the course of the divorce itself. It can provide, among other things, for:
taking the business out of the equalisation of accrued gains, or valuing it separately, by mutual consent,
deferral and instalment arrangements for the equalisation claim, so that it does not push the business into a liquidity squeeze,
a waiver of part of the equalisation in return for a settlement from assets outside the business,
arrangements for post-marital maintenance geared to what the business can actually bear, instead of leaving them to be fought out in court.
The decisive advantage over the contested route: the parties themselves shape the pace and the means of the equalisation – and the business stays able to operate while the private separation runs its course. Unlike a forward-looking prenuptial arrangement this agreement comes late, but it is often the last adjustment available to keep succession and divorce from working against each other.
How I help you as a lawyer for business owners' family law
Divorce for business owners: valuation, cut-off dates, liquidity
Your spouse receives no shares, but a claim for payment. The dispute therefore shifts to three points: which valuation method suits the business, what notional entrepreneur's salary is applied, and where the money for the equalisation payment is to come from.
Then there is maintenance. For the self-employed it cannot simply be read off a payslip. What counts is the profit over several years. I secure the documents first, then calculate, and negotiate after that.
Prenuptial agreements for business owners, shareholders and founders
A prenuptial agreement has to be notarially recorded, and both spouses must be present at the same time (section 1410 German Civil Code). It is prepared beforehand, and that preparation is the real work. In most cases the route does not run through separation of property.
The aim is a modified equalisation of accrued gains: business assets stay outside it, the remaining gains are shared, and the other spouse is compensated elsewhere. An agreement that burdens one side one-sidedly may not survive later judicial review. You are then left with no arrangement at all.
Business succession and the business owner's will
Succession is more than the question of who gets the business. It covers representation within the company if the owner is unavailable, provision for the spouse, equal treatment of children who work in the business and children who do not, and liquidity for compulsory shares and taxes.
I draft the will or contract of inheritance, examine executorship as an instrument, and align the documents with the arrangements already contained in the articles of association.
Foreign elements: jurisdiction and choice of law
As soon as a residence, a shareholding or a property lies abroad, the question of the applicable law comes before any question of substance. For estates the EU Succession Regulation connects in principle to the deceased's habitual residence at the time of death (Article 21), not to nationality and not to registration status.
What can be chosen is the law of the state of which the person is a national (Article 22 EU Succession Regulation). For divorce the Rome III Regulation (Regulation 1259/2010) likewise permits a choice of law within limits. Both choices only take effect if they are documented in the proper form. Inheritance tax, incidentally, is not governed by these regulations.
My role among your advisers
I do not advise on company and commercial law myself. That is a decision, not a gap. A family lawyer who amends articles of association on the side, and a corporate lawyer who drafts prenuptial agreements on the side, make the same mistake at different ends.
My work lies where the family meets the assets: prenuptial agreements, separation, the consequences of divorce, wills, contracts of inheritance, compulsory shares, the division of assets. Your tax adviser does the figures, your corporate lawyer drafts the articles, and I make sure that the prenuptial agreement, the divorce settlement agreement and the testamentary disposition all point in the same direction. And where it is needed, I draw on my network of specialists in company law, tax law and valuation.
Typical situations
01
Shareholder and caring spouse
One spouse is a shareholder and managing director, the other cared for the children. On paper there is considerable wealth, yet almost none of it is available. The first questions are then documents and cut-off dates, then the valuation method, and only last the equalisation payment.
02
Family business, two children
A family business, two children, one works in it, the other has a different career. The business is to continue undivided, both children are to be treated fairly, and the surviving spouse is to be provided for. Here I first work through the compulsory-share burden and then draft the will or the contract of inheritance.
03
Founding, funding round and wedding
Founding the company, a funding round and the wedding all fall in the same year. Investors ask about the matrimonial property regime, because an equalisation of accrued gains can touch the shareholding structure. That is the moment when a prenuptial agreement can be negotiated without suspicion, because both sides know why it is on the table.
How we work together
01
Initial consultation
By phone, by video or at my office at Jakordenstrasse 8 in Cologne. I listen, put the facts in order and tell you what the relevant issues are.
02
Taking stock
Now come the documents: articles of association including amendments, annual accounts and profit statements covering several years, share transfers, existing prenuptial agreements, wills and contracts of inheritance, all of which you can send me digitally. Whatever you do not have, I request.
03
Comparison and strategy
I lay the documents side by side and mark the points at which they contradict each other. From that comes an order of play: what has to be settled immediately, what can wait, and what is already fixed.
04
Implementation
Agreements are drafted, negotiated and notarially recorded where the law requires it. If it comes to proceedings, I represent you throughout Germany before the family courts, the regional courts and the higher regional courts.
Did you know?
01
Without a prenuptial agreement, the community of accrued gains applies automatically
Separate accounts, separate tax returns and separate securities portfolios change nothing. Separation of property arises only through a notarial agreement. At the same time, the community of accrued gains does not mean that the spouses' assets merge. On the contrary, both sets of assets remain separate during the marriage.
02
Both parties have to sit before the notary at the same time for a prenuptial agreement
Notarial recording with both parties present at the same time is a condition of validity (section 1410 German Civil Code). An arrangement by e-mail or a self-drafted agreement has no effect.
03
There are six weeks to disclaim an inheritance
The period begins with knowledge of the inheritance and of the grounds for being called to it. It is six months where the deceased's last residence was exclusively abroad or the heir is abroad when the period begins (section 1944 German Civil Code). Anyone inheriting an over-indebted business has to have decided within that time.
04
Correcting the land register after a death is free of charge for two years
If the application to register the heirs is filed with the land registry within two years of the death, no fee is charged (no. 14110 of the schedule to the German Court and Notary Costs Act). Where business premises are held privately, that is a date that belongs in the estate file.
Your contact
Dr Hanna Schmidt, attorney at law. Twelve years with large national and international commercial law firms, own practice since January 2026. Anyone who has spent years drafting and negotiating complex contracts between companies looks at a prenuptial agreement and sees the shareholding first, not the form.
Advice and representation in German and English, orally and in writing. I handle your case myself; it is not passed on to a lawyer you do not know. What you tell me stays between us, and that includes the fact that you are taking advice at all.
YOUR QUESTIONS
Frequently asked questions
It describes the handling of family and inheritance law questions where a business, a shareholding or a professional practice forms part of the assets. It is not a separate field of law, nor a protected term. What is meant is a way of working: the prenuptial agreement, the consequences of divorce, the will and the existing provisions of the articles of association are looked at together rather than separately.
No, as a rule your spouse receives no shares but a claim for payment in money. Without a prenuptial agreement spouses live in the community of accrued gains, and a comparison is then made of what each of them gained during the marriage. Whoever achieved the greater gain pays out half the difference. The value of the shareholding enters that calculation; the position as shareholder stays with you.
Yes, and frankly only then. A prenuptial agreement requires notarial recording with both spouses present (section 1410 German Civil Code), and therefore two parties able to negotiate. In a crisis nobody negotiates calmly about valuation methods any more. What usually makes sense is a modified equalisation of accrued gains that excludes business assets and secures the other spouse elsewhere.
I take on the family and inheritance law part and the alignment of the documents; company and tax law stay with your advisers. I read the articles of association, existing prenuptial agreements and testamentary dispositions, name the contradictions and formulate the family law framework. Where an amendment to the articles, a tax valuation or a restructuring becomes necessary, I bring in the appropriate specialists.
I bill by time, at an hourly rate of 280 euros plus 19 per cent VAT, but at least according to the statutory fees under the German Lawyers' Fees Act (RVG). Billing through legal expenses insurance is possible. As a rule the insurer only pays the statutory fees; you bear the difference to the hourly fee. In the initial consultation I estimate the effort for the next stage.
Yes. I represent you before family and probate courts throughout Germany as well as at appeal level, and advise by video or telephone if you prefer that to travelling. Which family court has jurisdiction follows statutory rules, not the seat of your lawyer or of your company. I attend court hearings in person, including outside North Rhine-Westphalia.
Laying your three documents side by side, once
A prenuptial agreement, a will and the articles of association can be tested against the worst case in a single appointment. Describe your situation to me and I will tell you which level is carrying the problem. I represent you throughout Germany before all local, regional and higher regional courts and advise by phone, by video or in person.
PRACTICE AREA
Family law for business owners in Cologne and throughout Germany
What happens to your business when something changes in your private life rests on several documents: a prenuptial agreement or a separation and divorce settlement agreement, the will and the articles of association. These documents were usually drawn up at different times and by different advisers, without anyone ever checking how they work together. I help you align these documents with one another, so that your private intentions and the structure of your company fit together properly.
TOPICS
The topics in family law for business owners:
where I advise you in detail
Matrimonial property law and business succession: why separation of property is rarely the best solution
Separation of property solves the valuation problem – and creates a new one
At first sight separation of property looks like the obvious answer to the valuation problem: no equalisation of accrued gains, no argument about the value of the business in a divorce. What is frequently overlooked is what it sets off on death. Where the spouses lived in the community of accrued gains, the surviving spouse's statutory share of the estate is increased by a flat quarter. If that increase falls away with separation of property, the spouse's share becomes smaller – the children's shares grow, and with them their compulsory shares.
The compulsory share confers no participation in the business; it is a claim for money against the heir amounting to half the value of the statutory share of the estate (section 2303 German Civil Code). That claim grows with the value of the company, it falls due in euros, and it has to be found by whoever carries the business on. Anyone who chooses separation of property in order to keep the business out of the divorce may therefore aggravate precisely the liquidity problem they wanted to avoid on death.
The modified community of accrued gains: the better fit for most business owners' marriages
Between the full community of accrued gains and separation of property lies an instrument that is used too rarely in practice: the modified community of accrued gains. By prenuptial agreement the business – or only the increase in its value over the course of the marriage – can be taken out of the equalisation of accrued gains without giving up the property regime as a whole.
The effect: the valuation problem for the business is solved for the divorce, because that asset simply does not enter the equalisation calculation. At the same time the community of accrued gains remains in place as the property regime – with the result that the spouse keeps the additional quarter under inheritance law and the children's compulsory shares do not grow automatically.
For most business owners' marriages that is the economically sounder solution: it takes the explosive issue of company valuation out of the divorce without opening up new fronts between spouse and children on death.
A will can fail on the succession clause in the articles of association
In partnerships it is the partnership agreement that decides first who may succeed. Where it contains a qualified succession clause and the will appoints someone that clause does not permit, the result is regularly not a partner's position but a claim to compensation. And that claim burdens precisely the business that was supposed to be protected.
In corporations shares are in principle inheritable, but redemption, assignment and transfer-restriction clauses likewise cut into what the will provides for. That is why I read the articles of association before drafting any business owner's will. I cannot change them, but I can check whether the testamentary disposition can work within them at all.
Transferring to the successor child echoes for ten years
Transferring shares early is often right, but it does not shake off the compulsory share immediately: a gift is taken into account in full within the first year before the death and by one tenth less for each further year, and only after ten years is it left out of account entirely (section 2325(3) German Civil Code).
For gifts to a spouse this period only begins when the marriage ends – a circumstance that in effect undoes the ten-year calculation for transfers made during the marriage.
A separation in the middle of a succession hits both levels
The equalisation of accrued gains works with values that have long been earmarked for the succession. If the shareholding has already been transferred to a child, it can appear in that child's accrued gains as soon as the child separates in turn. If it stays with the transferor, it appears in their final assets.
Both can be caught by agreement – in the transfer agreement as much as in the successor's prenuptial agreement – but only in advance, while the marriage is still intact.
Where the separation has already happened: the separation and divorce settlement agreement as a safety net
Where that provision is missing, or the separation is already a reality, all is not lost. A separation and divorce settlement agreement can order access to the business after the event as well – still during the period of separation or in the course of the divorce itself. It can provide, among other things, for:
taking the business out of the equalisation of accrued gains, or valuing it separately, by mutual consent,
deferral and instalment arrangements for the equalisation claim, so that it does not push the business into a liquidity squeeze,
a waiver of part of the equalisation in return for a settlement from assets outside the business,
arrangements for post-marital maintenance geared to what the business can actually bear, instead of leaving them to be fought out in court.
The decisive advantage over the contested route: the parties themselves shape the pace and the means of the equalisation – and the business stays able to operate while the private separation runs its course. Unlike a forward-looking prenuptial arrangement this agreement comes late, but it is often the last adjustment available to keep succession and divorce from working against each other.
How I help you as a lawyer for business owners' family law
Divorce for business owners: valuation, cut-off dates, liquidity
Your spouse receives no shares, but a claim for payment. The dispute therefore shifts to three points: which valuation method suits the business, what notional entrepreneur's salary is applied, and where the money for the equalisation payment is to come from.
Then there is maintenance. For the self-employed it cannot simply be read off a payslip. What counts is the profit over several years. I secure the documents first, then calculate, and negotiate after that.
Prenuptial agreements for business owners, shareholders and founders
A prenuptial agreement has to be notarially recorded, and both spouses must be present at the same time (section 1410 German Civil Code). It is prepared beforehand, and that preparation is the real work. In most cases the route does not run through separation of property.
The aim is a modified equalisation of accrued gains: business assets stay outside it, the remaining gains are shared, and the other spouse is compensated elsewhere. An agreement that burdens one side one-sidedly may not survive later judicial review. You are then left with no arrangement at all.
Business succession and the business owner's will
Succession is more than the question of who gets the business. It covers representation within the company if the owner is unavailable, provision for the spouse, equal treatment of children who work in the business and children who do not, and liquidity for compulsory shares and taxes.
I draft the will or contract of inheritance, examine executorship as an instrument, and align the documents with the arrangements already contained in the articles of association.
Foreign elements: jurisdiction and choice of law
As soon as a residence, a shareholding or a property lies abroad, the question of the applicable law comes before any question of substance. For estates the EU Succession Regulation connects in principle to the deceased's habitual residence at the time of death (Article 21), not to nationality and not to registration status.
What can be chosen is the law of the state of which the person is a national (Article 22 EU Succession Regulation). For divorce the Rome III Regulation (Regulation 1259/2010) likewise permits a choice of law within limits. Both choices only take effect if they are documented in the proper form. Inheritance tax, incidentally, is not governed by these regulations.
My role among your advisers
I do not advise on company and commercial law myself. That is a decision, not a gap. A family lawyer who amends articles of association on the side, and a corporate lawyer who drafts prenuptial agreements on the side, make the same mistake at different ends.
My work lies where the family meets the assets: prenuptial agreements, separation, the consequences of divorce, wills, contracts of inheritance, compulsory shares, the division of assets. Your tax adviser does the figures, your corporate lawyer drafts the articles, and I make sure that the prenuptial agreement, the divorce settlement agreement and the testamentary disposition all point in the same direction. And where it is needed, I draw on my network of specialists in company law, tax law and valuation.
Typical situations
01
Shareholder and caring spouse
One spouse is a shareholder and managing director, the other cared for the children. On paper there is considerable wealth, yet almost none of it is available. The first questions are then documents and cut-off dates, then the valuation method, and only last the equalisation payment.
02
Family business, two children
A family business, two children, one works in it, the other has a different career. The business is to continue undivided, both children are to be treated fairly, and the surviving spouse is to be provided for. Here I first work through the compulsory-share burden and then draft the will or the contract of inheritance.
03
Founding, funding round and wedding
Founding the company, a funding round and the wedding all fall in the same year. Investors ask about the matrimonial property regime, because an equalisation of accrued gains can touch the shareholding structure. That is the moment when a prenuptial agreement can be negotiated without suspicion, because both sides know why it is on the table.
How we work together
01
Initial consultation
By phone, by video or at my office at Jakordenstrasse 8 in Cologne. I listen, put the facts in order and tell you what the relevant issues are.
02
Taking stock
Now come the documents: articles of association including amendments, annual accounts and profit statements covering several years, share transfers, existing prenuptial agreements, wills and contracts of inheritance, all of which you can send me digitally. Whatever you do not have, I request.
03
Comparison and strategy
I lay the documents side by side and mark the points at which they contradict each other. From that comes an order of play: what has to be settled immediately, what can wait, and what is already fixed.
04
Implementation
Agreements are drafted, negotiated and notarially recorded where the law requires it. If it comes to proceedings, I represent you throughout Germany before the family courts, the regional courts and the higher regional courts.
Did you know?
01
Without a prenuptial agreement, the community of accrued gains applies automatically
Separate accounts, separate tax returns and separate securities portfolios change nothing. Separation of property arises only through a notarial agreement. At the same time, the community of accrued gains does not mean that the spouses' assets merge. On the contrary, both sets of assets remain separate during the marriage.
02
Both parties have to sit before the notary at the same time for a prenuptial agreement
Notarial recording with both parties present at the same time is a condition of validity (section 1410 German Civil Code). An arrangement by e-mail or a self-drafted agreement has no effect.
03
There are six weeks to disclaim an inheritance
The period begins with knowledge of the inheritance and of the grounds for being called to it. It is six months where the deceased's last residence was exclusively abroad or the heir is abroad when the period begins (section 1944 German Civil Code). Anyone inheriting an over-indebted business has to have decided within that time.
04
Correcting the land register after a death is free of charge for two years
If the application to register the heirs is filed with the land registry within two years of the death, no fee is charged (no. 14110 of the schedule to the German Court and Notary Costs Act). Where business premises are held privately, that is a date that belongs in the estate file.
Your contact
Dr Hanna Schmidt, attorney at law. Twelve years with large national and international commercial law firms, own practice since January 2026. Anyone who has spent years drafting and negotiating complex contracts between companies looks at a prenuptial agreement and sees the shareholding first, not the form.
Advice and representation in German and English, orally and in writing. I handle your case myself; it is not passed on to a lawyer you do not know. What you tell me stays between us, and that includes the fact that you are taking advice at all.
YOUR QUESTIONS
Frequently asked questions
It describes the handling of family and inheritance law questions where a business, a shareholding or a professional practice forms part of the assets. It is not a separate field of law, nor a protected term. What is meant is a way of working: the prenuptial agreement, the consequences of divorce, the will and the existing provisions of the articles of association are looked at together rather than separately.
No, as a rule your spouse receives no shares but a claim for payment in money. Without a prenuptial agreement spouses live in the community of accrued gains, and a comparison is then made of what each of them gained during the marriage. Whoever achieved the greater gain pays out half the difference. The value of the shareholding enters that calculation; the position as shareholder stays with you.
Yes, and frankly only then. A prenuptial agreement requires notarial recording with both spouses present (section 1410 German Civil Code), and therefore two parties able to negotiate. In a crisis nobody negotiates calmly about valuation methods any more. What usually makes sense is a modified equalisation of accrued gains that excludes business assets and secures the other spouse elsewhere.
I take on the family and inheritance law part and the alignment of the documents; company and tax law stay with your advisers. I read the articles of association, existing prenuptial agreements and testamentary dispositions, name the contradictions and formulate the family law framework. Where an amendment to the articles, a tax valuation or a restructuring becomes necessary, I bring in the appropriate specialists.
I bill by time, at an hourly rate of 280 euros plus 19 per cent VAT, but at least according to the statutory fees under the German Lawyers' Fees Act (RVG). Billing through legal expenses insurance is possible. As a rule the insurer only pays the statutory fees; you bear the difference to the hourly fee. In the initial consultation I estimate the effort for the next stage.
Yes. I represent you before family and probate courts throughout Germany as well as at appeal level, and advise by video or telephone if you prefer that to travelling. Which family court has jurisdiction follows statutory rules, not the seat of your lawyer or of your company. I attend court hearings in person, including outside North Rhine-Westphalia.
Laying your three documents side by side, once
A prenuptial agreement, a will and the articles of association can be tested against the worst case in a single appointment. Describe your situation to me and I will tell you which level is carrying the problem. I represent you throughout Germany before all local, regional and higher regional courts and advise by phone, by video or in person.
PRACTICE AREA
Family law for business owners in Cologne and throughout Germany
What happens to your business when something changes in your private life rests on several documents: a prenuptial agreement or a separation and divorce settlement agreement, the will and the articles of association. These documents were usually drawn up at different times and by different advisers, without anyone ever checking how they work together. I help you align these documents with one another, so that your private intentions and the structure of your company fit together properly.
TOPICS
The topics in family law for business owners:
where I advise you in detail
Matrimonial property law and business succession: why separation of property is rarely the best solution
Separation of property solves the valuation problem – and creates a new one
At first sight separation of property looks like the obvious answer to the valuation problem: no equalisation of accrued gains, no argument about the value of the business in a divorce. What is frequently overlooked is what it sets off on death. Where the spouses lived in the community of accrued gains, the surviving spouse's statutory share of the estate is increased by a flat quarter. If that increase falls away with separation of property, the spouse's share becomes smaller – the children's shares grow, and with them their compulsory shares.
The compulsory share confers no participation in the business; it is a claim for money against the heir amounting to half the value of the statutory share of the estate (section 2303 German Civil Code). That claim grows with the value of the company, it falls due in euros, and it has to be found by whoever carries the business on. Anyone who chooses separation of property in order to keep the business out of the divorce may therefore aggravate precisely the liquidity problem they wanted to avoid on death.
The modified community of accrued gains: the better fit for most business owners' marriages
Between the full community of accrued gains and separation of property lies an instrument that is used too rarely in practice: the modified community of accrued gains. By prenuptial agreement the business – or only the increase in its value over the course of the marriage – can be taken out of the equalisation of accrued gains without giving up the property regime as a whole.
The effect: the valuation problem for the business is solved for the divorce, because that asset simply does not enter the equalisation calculation. At the same time the community of accrued gains remains in place as the property regime – with the result that the spouse keeps the additional quarter under inheritance law and the children's compulsory shares do not grow automatically.
For most business owners' marriages that is the economically sounder solution: it takes the explosive issue of company valuation out of the divorce without opening up new fronts between spouse and children on death.
A will can fail on the succession clause in the articles of association
In partnerships it is the partnership agreement that decides first who may succeed. Where it contains a qualified succession clause and the will appoints someone that clause does not permit, the result is regularly not a partner's position but a claim to compensation. And that claim burdens precisely the business that was supposed to be protected.
In corporations shares are in principle inheritable, but redemption, assignment and transfer-restriction clauses likewise cut into what the will provides for. That is why I read the articles of association before drafting any business owner's will. I cannot change them, but I can check whether the testamentary disposition can work within them at all.
Transferring to the successor child echoes for ten years
Transferring shares early is often right, but it does not shake off the compulsory share immediately: a gift is taken into account in full within the first year before the death and by one tenth less for each further year, and only after ten years is it left out of account entirely (section 2325(3) German Civil Code).
For gifts to a spouse this period only begins when the marriage ends – a circumstance that in effect undoes the ten-year calculation for transfers made during the marriage.
A separation in the middle of a succession hits both levels
The equalisation of accrued gains works with values that have long been earmarked for the succession. If the shareholding has already been transferred to a child, it can appear in that child's accrued gains as soon as the child separates in turn. If it stays with the transferor, it appears in their final assets.
Both can be caught by agreement – in the transfer agreement as much as in the successor's prenuptial agreement – but only in advance, while the marriage is still intact.
Where the separation has already happened: the separation and divorce settlement agreement as a safety net
Where that provision is missing, or the separation is already a reality, all is not lost. A separation and divorce settlement agreement can order access to the business after the event as well – still during the period of separation or in the course of the divorce itself. It can provide, among other things, for:
taking the business out of the equalisation of accrued gains, or valuing it separately, by mutual consent,
deferral and instalment arrangements for the equalisation claim, so that it does not push the business into a liquidity squeeze,
a waiver of part of the equalisation in return for a settlement from assets outside the business,
arrangements for post-marital maintenance geared to what the business can actually bear, instead of leaving them to be fought out in court.
The decisive advantage over the contested route: the parties themselves shape the pace and the means of the equalisation – and the business stays able to operate while the private separation runs its course. Unlike a forward-looking prenuptial arrangement this agreement comes late, but it is often the last adjustment available to keep succession and divorce from working against each other.
How I help you as a lawyer for business owners' family law
Divorce for business owners: valuation, cut-off dates, liquidity
Your spouse receives no shares, but a claim for payment. The dispute therefore shifts to three points: which valuation method suits the business, what notional entrepreneur's salary is applied, and where the money for the equalisation payment is to come from.
Then there is maintenance. For the self-employed it cannot simply be read off a payslip. What counts is the profit over several years. I secure the documents first, then calculate, and negotiate after that.
Prenuptial agreements for business owners, shareholders and founders
A prenuptial agreement has to be notarially recorded, and both spouses must be present at the same time (section 1410 German Civil Code). It is prepared beforehand, and that preparation is the real work. In most cases the route does not run through separation of property.
The aim is a modified equalisation of accrued gains: business assets stay outside it, the remaining gains are shared, and the other spouse is compensated elsewhere. An agreement that burdens one side one-sidedly may not survive later judicial review. You are then left with no arrangement at all.
Business succession and the business owner's will
Succession is more than the question of who gets the business. It covers representation within the company if the owner is unavailable, provision for the spouse, equal treatment of children who work in the business and children who do not, and liquidity for compulsory shares and taxes.
I draft the will or contract of inheritance, examine executorship as an instrument, and align the documents with the arrangements already contained in the articles of association.
Foreign elements: jurisdiction and choice of law
As soon as a residence, a shareholding or a property lies abroad, the question of the applicable law comes before any question of substance. For estates the EU Succession Regulation connects in principle to the deceased's habitual residence at the time of death (Article 21), not to nationality and not to registration status.
What can be chosen is the law of the state of which the person is a national (Article 22 EU Succession Regulation). For divorce the Rome III Regulation (Regulation 1259/2010) likewise permits a choice of law within limits. Both choices only take effect if they are documented in the proper form. Inheritance tax, incidentally, is not governed by these regulations.
My role among your advisers
I do not advise on company and commercial law myself. That is a decision, not a gap. A family lawyer who amends articles of association on the side, and a corporate lawyer who drafts prenuptial agreements on the side, make the same mistake at different ends.
My work lies where the family meets the assets: prenuptial agreements, separation, the consequences of divorce, wills, contracts of inheritance, compulsory shares, the division of assets. Your tax adviser does the figures, your corporate lawyer drafts the articles, and I make sure that the prenuptial agreement, the divorce settlement agreement and the testamentary disposition all point in the same direction. And where it is needed, I draw on my network of specialists in company law, tax law and valuation.
Typical situations
01
Shareholder and caring spouse
One spouse is a shareholder and managing director, the other cared for the children. On paper there is considerable wealth, yet almost none of it is available. The first questions are then documents and cut-off dates, then the valuation method, and only last the equalisation payment.
02
Family business, two children
A family business, two children, one works in it, the other has a different career. The business is to continue undivided, both children are to be treated fairly, and the surviving spouse is to be provided for. Here I first work through the compulsory-share burden and then draft the will or the contract of inheritance.
03
Founding, funding round and wedding
Founding the company, a funding round and the wedding all fall in the same year. Investors ask about the matrimonial property regime, because an equalisation of accrued gains can touch the shareholding structure. That is the moment when a prenuptial agreement can be negotiated without suspicion, because both sides know why it is on the table.
How we work together
01
Initial consultation
By phone, by video or at my office at Jakordenstrasse 8 in Cologne. I listen, put the facts in order and tell you what the relevant issues are.
02
Taking stock
Now come the documents: articles of association including amendments, annual accounts and profit statements covering several years, share transfers, existing prenuptial agreements, wills and contracts of inheritance, all of which you can send me digitally. Whatever you do not have, I request.
03
Comparison and strategy
I lay the documents side by side and mark the points at which they contradict each other. From that comes an order of play: what has to be settled immediately, what can wait, and what is already fixed.
04
Implementation
Agreements are drafted, negotiated and notarially recorded where the law requires it. If it comes to proceedings, I represent you throughout Germany before the family courts, the regional courts and the higher regional courts.
Did you know?
01
Without a prenuptial agreement, the community of accrued gains applies automatically
Separate accounts, separate tax returns and separate securities portfolios change nothing. Separation of property arises only through a notarial agreement. At the same time, the community of accrued gains does not mean that the spouses' assets merge. On the contrary, both sets of assets remain separate during the marriage.
02
Both parties have to sit before the notary at the same time for a prenuptial agreement
Notarial recording with both parties present at the same time is a condition of validity (section 1410 German Civil Code). An arrangement by e-mail or a self-drafted agreement has no effect.
03
There are six weeks to disclaim an inheritance
The period begins with knowledge of the inheritance and of the grounds for being called to it. It is six months where the deceased's last residence was exclusively abroad or the heir is abroad when the period begins (section 1944 German Civil Code). Anyone inheriting an over-indebted business has to have decided within that time.
04
Correcting the land register after a death is free of charge for two years
If the application to register the heirs is filed with the land registry within two years of the death, no fee is charged (no. 14110 of the schedule to the German Court and Notary Costs Act). Where business premises are held privately, that is a date that belongs in the estate file.
Your contact
Dr Hanna Schmidt, attorney at law. Twelve years with large national and international commercial law firms, own practice since January 2026. Anyone who has spent years drafting and negotiating complex contracts between companies looks at a prenuptial agreement and sees the shareholding first, not the form.
Advice and representation in German and English, orally and in writing. I handle your case myself; it is not passed on to a lawyer you do not know. What you tell me stays between us, and that includes the fact that you are taking advice at all.
YOUR QUESTIONS
Frequently asked questions
It describes the handling of family and inheritance law questions where a business, a shareholding or a professional practice forms part of the assets. It is not a separate field of law, nor a protected term. What is meant is a way of working: the prenuptial agreement, the consequences of divorce, the will and the existing provisions of the articles of association are looked at together rather than separately.
No, as a rule your spouse receives no shares but a claim for payment in money. Without a prenuptial agreement spouses live in the community of accrued gains, and a comparison is then made of what each of them gained during the marriage. Whoever achieved the greater gain pays out half the difference. The value of the shareholding enters that calculation; the position as shareholder stays with you.
Yes, and frankly only then. A prenuptial agreement requires notarial recording with both spouses present (section 1410 German Civil Code), and therefore two parties able to negotiate. In a crisis nobody negotiates calmly about valuation methods any more. What usually makes sense is a modified equalisation of accrued gains that excludes business assets and secures the other spouse elsewhere.
I take on the family and inheritance law part and the alignment of the documents; company and tax law stay with your advisers. I read the articles of association, existing prenuptial agreements and testamentary dispositions, name the contradictions and formulate the family law framework. Where an amendment to the articles, a tax valuation or a restructuring becomes necessary, I bring in the appropriate specialists.
I bill by time, at an hourly rate of 280 euros plus 19 per cent VAT, but at least according to the statutory fees under the German Lawyers' Fees Act (RVG). Billing through legal expenses insurance is possible. As a rule the insurer only pays the statutory fees; you bear the difference to the hourly fee. In the initial consultation I estimate the effort for the next stage.
Yes. I represent you before family and probate courts throughout Germany as well as at appeal level, and advise by video or telephone if you prefer that to travelling. Which family court has jurisdiction follows statutory rules, not the seat of your lawyer or of your company. I attend court hearings in person, including outside North Rhine-Westphalia.
Laying your three documents side by side, once
A prenuptial agreement, a will and the articles of association can be tested against the worst case in a single appointment. Describe your situation to me and I will tell you which level is carrying the problem. I represent you throughout Germany before all local, regional and higher regional courts and advise by phone, by video or in person.