Judgment: OLG Düsseldorf, decision of November 21, 2018 - 5 UF 1/18 -, juris
Lower court: AG Erkelenz, decision of November 14, 2017 - 13 F 40/17 -, juris (FamRZ 2018, 710)
Author's guiding principle: If the spouse dies during the divorce proceedings, the maintenance claim according to § 1933 BGB is essentially a replacement inheritance claim and not an original maintenance claim.
In these proceedings, we represented the heiress of the plaintiff's spouse, who died during the pending divorce proceedings. Before the death of her husband in the pending joint divorce proceedings, the plaintiff applied for the payment of post-marital maintenance from the date of the divorce and after his death (end of 2011) declared that the matter would be continued as independent family matters against our client as the heir.
With a final decision of August 26, 2016, the local court responsible for the joint proceedings at that time (AG Viersen) rejected the application for maintenance as inadmissible, since it was not a follow-up matter that could be continued, since the application made required a legally binding divorce, which was not possible due to the death more could come.
As a result, family court proceedings before the AG Erkelenz (13 F 40/17) were initiated against our client at the beginning of 2017 and the claim is now specifically based on § 1933 BGB.
Our objection to the statute of limitations for the period before January 1st, 2014 was countered by the fact that the original claim for post-marital maintenance and the claim according to Section 1933 of the German Civil Code are "the same thing", meaning that the claim pending before the Viersen district court is the statute of limitations would have inhibited.
We countered this with the argument that the claim according to § 1933 BGB is a separate claim which, according to its legal nature, which results from the corresponding legal justification, is a claim for replacement of an inheritance and not an original claim for maintenance.
The AG Erkelenz followed this with a decision of November 14, 2017 - 13 F 40/17 -, juris (FamRZ 2018, 710).
An appeal was lodged against the judgment with the Düsseldorf Higher Regional Court (5 UF 1/18).
The Düsseldorf Higher Regional Court expressly left the question of the legal nature open and rejected the claim asserted against our client in a decision dated November 21, 2018 for other reasons.
Our opinion on the legal nature of § 1933 BGB was approved by the director of the district court in Oranienburg in an article in jurisPR-FamR 16/2018.