At its Human Rights meeting on 3-5 December, the Committee of Ministers ended its supervision of the execution of the Mitzinger and Wolter and Sarfert v. Germany judgments. The cases concern the exclusion of children (the applicants) born outside wedlock from asserting inheritance rights in respect of their late biological fathers – and are similar to the previously closed case Brauer.
Following the Brauer case, German legislature passed the Second Inheritance Rights Equalisation Act of 12 April 2011. The first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act of 19 August 1969 was changed retroactively to the effect that the difference in treatment between children born outside wedlock before and after 1 July 1949 was set aside in cases where the deceased had died on or after 28 May 2009. In cases where the deceased had died before 28 May 2009 the difference remained in force.
Following the case of Wolter and Sarfert, the Federal Court of Justice decision of 12 July 2017 changed the application of the amended legislation. Through its teleological interpretation of the domestic legislation, it came to the conclusion that, despite the wording of the applicable legal provision and following a Convention compliant proportionality assessment, children born outside wedlock before 1 July 1949 can be granted, inheritance claims even where the deceased has died before 28 May 2009. The main elements to be taken into account in the proportionality assessment are the knowledge of the persons concerned, the status of the inheritance rights involved, and the passage of time in bringing complaints.
