Surprising possibilities for amending the pension equalisation after the death of the spouse entitled to equalisation

1) In several decisions (XII ZB 426/15 and XII ZB 466/16), the Federal Court of Justice has opened up the possibility of achieving a complete elimination of the pension equalisation carried out upon divorce in the event of the death of the divorced spouse entitled to equalisation beyond the options explicitly mentioned in the law.

This can only affect decisions on pension equalisation that have been made since the introduction of pension equalisation in 1977 until 2009 in accordance with the pension equalisation law applicable until 31 August 2009.

In particular, the decisions of the Federal Court of Justice open up the possibility of cancelling the pension equalisation, even if the spouse entitled to equalisation had already drawn a pension for a long time before his or her death, on which the pension equalisation had a positive effect. The time limit of a maximum of 36 months for which the spouse entitled to equalisation may have drawn a pension, as stipulated in Section 37 of the Pension Equalisation Act, does not apply in these cases.

2 However, the death of the spouse entitled to equalisation alone is not sufficient to be able to apply for such a modification of the pension equalisation with prospects of success. In addition, there must have been a significant change in the relevant pension entitlements on the part of the spouse obliged to equalise or on the part of the deceased spouse entitled to equalisation in comparison to the situation on which the original decision on pension equalisation in the divorce was based. These changes must have occurred in relation to the period of marriage for which the pension equalisation was carried out.

3. there are some groups of cases in which a significant change may typically have occurred that leads to a reason for amendment:

- At least one of the spouses is or was a civil servant and has a higher or lower pension than that on which the original decision on pension equalisation was based.
Possible reasons for this include the general reduction in the maximum pension rate for civil servants, the discontinuation of the Christmas bonus previously paid or early retirement.

- Comparable changes are also possible for divorced spouses who receive a statutory pension.
Probably the most important case in practice is the subsequent attribution of child-raising periods if these did not exist at all or only to a lesser extent when the original decision on pension equalisation was made. This also includes additional pension entitlements due to the "mothers' pension".
There may also be a significant change compared to the circumstances on which the decision on pension equalisation was originally based, e.g. due to the fact that periods of school and university education no longer have the effect of increasing pensions.

- Finally, such an application for amendment can also be considered, for example, if an occupational pension was converted in accordance with the provisions of the Cash Value Ordinance applicable until 2009 when the original decision on pension equalisation was made and then - this was the consequence of the old legal situation - only a significantly lower amount than its actual value was included in the calculation of the pension equalisation.

4. if a decision on pension equalisation was made in accordance with the law applicable until 2009 and the spouse entitled to equalisation has predeceased the spouse, it may always be worthwhile to have a specialist examine whether an amendment procedure has any prospect of success. This is because even relatively minor changes to pension and retirement entitlements are usually sufficient to allow the pension equalisation to be cancelled altogether with effect for the future. A modification of the decision on pension equalisation is always only possible with effect from the date of submission of a corresponding application to the family court, i.e. not retroactively for the period from the death of the spouse formerly entitled to equalisation.

Lawyer Andreas Wucherpfennig
Specialist lawyer for family law