BFH confirms the "Hamburg model" - family home in a GbR can be transferred free of inheritance and gift tax!

What is the Hamburg model?

If spouses do not hold their family home as fractional ownership, but as the property of a (spousal or family) GbR, there are (non-tax) advantages.

Non-tax advantages:

• The ownership shares can be changed by company agreement (private deed) without the need for changes to the land register. This facilitates adjustments between spouses or other family members.
• Savings on notary and land registry costs.
• However, since the MoPeG came into force on 1 January 2024, an entry in the company register may still be required in the event of a change of shareholder. In addition, reporting obligations for the transparency register must be observed (in the event of a change in beneficial owners).  
• Civil law unity: The house remains legally unified, even if one of the spouses dies or assets are reorganised. This facilitates powers of attorney and agreements under banking law.
• Individual contractual provisions for divorce and inheritance in the partnership agreement to protect the family assets.
• In addition to the non-tax reasons, there may also be advantages in the area of real estate transfer tax in certain constellations (e.g. sale of shares by a spouse to a new partner). However, greater complexity. In addition, from 1 January 2027, potential disadvantages in terms of real estate transfer tax are conceivable (end of the transitional regulation § 24 GrEStG).

Previous tax risk in the event of a gift or inheritance

Prior to the decision of the Federal Fiscal Court published on 23 October 2025, it was questionable whether the tax exemption for the so-called family home also applies in the event of inheritance or gift if the property is jointly owned by a GbR. This is because in the event of death, it is not the property itself that is inherited, but a share in the company, which the tax office has not always recognised as a "family home in ownership" within the meaning of Section 13 ErbStG. § Section 13 ErbStG. This meant that inheritance or gift tax was payable, even if the surviving spouse continued to live in the house themselves and the other requirements for the family home exemption were met.

New case law of the Federal Fiscal Court (2025)

In its ruling of 4 June 2025 (II R 18/23 - publication on 23 October 2025), the Federal Fiscal Court ruled that the tax privilege also applies if the family home is contributed to the assets of a spouses' GbR. The acquisition of joint ownership of a family home is also covered by the tax exemption under Section 13 para. 1 no. 4 letter a sentence 1 of the Inheritance Tax and Gift Tax Act. It is not the ownership under civil law that is decisive, but the enrichment of the shareholder's assets. The same applies to the period after the MoPeG and the civil law abandonment of the joint ownership principle due to the fiction of Section 2a ErbStG. Based on these principles, it is therefore clear that the transfer of shares in a spouse's GbR or family GbR is also covered by the tax exemption for family homes.  

Further requirements for the exemption of the transfer of the family home from gift or inheritance tax

Gift of the family home (Section 13 no. 4 letter a ErbStG)

• Only possible between spouses or registered partners (not for gifts to children, grandchildren or other relatives).

Transfer of the family home in the event of death (Section 13 no. 4 letters b and c ErbStG)

• Spouses and registered partners as well as children and grandchildren can inherit the family home tax-free if they continue to use the property for their own residential purposes for at least ten years from the date of inheritance. Premature departure, letting or sale within the ten-year period leads to retroactive taxation. The property must have previously been used by the deceased for their own residential purposes. Alternatively, an exemption is possible if the deceased moved out for compelling reasons (e.g. need for care).
• The tax exemption for children/grandchildren is limited to 200 m² of living space; anything above this is taxed pro rata.

Important to note (both for gifts and for transfers after inheritance):

• The property must actually be used for own residential purposes (family centre). The family home must be located in Germany, the EU or the EEA Holiday homes, second homes or rented properties are not covered by the tax exemption.
• Mixed-use properties are also favoured if the residential use is in the foreground.
• The exemption only applies to actually utilised living space and not to undeveloped properties.

Note the special features of financing property in GbR structures

• In principle, taking out a loan at the level of the GbR can permanently damage the creditworthiness of both partners. This may jeopardise the future financial viability of the shareholders.  
• In practice, separate loans are therefore usually taken out at shareholder level to finance the company's assets. This means that the financing is provided by the shareholders, only the collateral (in the form of a land charge) is provided at the level of the (e)GbR.

Yours TAXGATE Team supports wealthy private individuals and family businesses with complex tax issues and represents their interests vis-à-vis the tax authorities.