Federal Court of Justice confirms validity of entrepreneurial marriage contracts excluding equalization of accrued gains – Important guidelines for entrepreneurs

BGH ruling: What does this mean for entrepreneurs?

The Federal Court of Justice (BGH) has provided greater legal certainty with its ruling of May 28, 2025 (Ref. XII ZB 395/24): Marriage contracts in which entrepreneurs and their partners exclude equalization of gains and agree on separation of property are generally valid. However, they must be negotiated on an equal footing in order to be valid. The decision is particularly important for entrepreneurial families, as it provides important guidelines for the drafting of marriage contracts.

The facts: Entrepreneurial provision through a marriage contract

In the underlying case, an entrepreneurial couple entered into a marriage contract before getting married. This provided for separation of property, maintenance arrangements deviating from the law, and mutual waivers of inheritance and compulsory portions. In the context of the divorce, the wife nevertheless demanded equalization of gains, arguing that the contract was contrary to public policy and therefore invalid.

The BGH rejected this argument: At the time the agreement was concluded, the wife was herself the managing director of a limited liability company, financially independent, and well educated. Both spouses had sufficient time to consider the content of the agreement, as the key points had already been communicated one month before the agreement was notarized. In addition, contract negotiations had taken place in advance and the wife had received legal advice from her father, a lawyer. The Federal Court of Justice had also already recognized in previous decisions the legitimate interest of the husband in agreeing to separate property for reasons of corporate protection.

Practical significance for entrepreneurs and their families

The Federal Court of Justice's decision provides important guidance for entrepreneurs:

• Freedom of choice in marriage contracts: Spouses can effectively exclude the community of accrued gains as the matrimonial property regime by means of a marriage contract. This is particularly important if the aim is to protect business assets.
• Content review and unconscionability: A marriage contract is generally only invalid if it grossly disadvantages one spouse and this disadvantage is based on an unequal bargaining position or the exploitation of a predicament. The objective disadvantage of one spouse is generally not sufficient in itself to assume that the marriage contract is invalid.
• Importance of advice and preparation: The decision underscores the importance of independent legal advice and careful preparation.

Recommendations for the drafting of entrepreneurial marriage contracts

Agreeing on the separation of property is an effective tool for securing one's own assets, and in particular business assets, in the event of divorce. This requires that both spouses negotiate on an equal footing. To ensure this, the following points should be taken into account when drafting a marital contract for entrepreneurs:

• Early planning: Consideration of a marriage contract should begin in good time, ideally several months before the marriage. This allows sufficient time for negotiations and adjustments.
• Active involvement of the other spouse: Both parties should be actively involved in the drafting of the agreement. Contract adjustments based on negotiations demonstrate that discussions were conducted on an equal footing.
• Independent legal advice: Each spouse should seek advice from their own lawyer. Notarization does not replace personal legal advice.
• Transparency in international marriages: For spouses who do not speak German, the draft contract should be translated into their respective native languages. An interpreter at the notary appointment ensures that all contract contents are understood.

Conclusion

Marriage contracts are a proven means in business circles of securing business assets and preventing significant liquidity outflows in the event of divorce. The current ruling by the Federal Court of Justice strengthens the contractual freedom of spouses and provides clear guidelines for entrepreneurs. A well-prepared and fairly negotiated marriage contract is the best protection for a family business.