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.
• Neben den außersteuerlichen Gründen können sich in bestimmten Konstellationen auch Vorteile im Bereich der Grunderwerbsteuer ergeben (z. B. Anteilsveräußerung eines Ehegatten an einen neuen Lebensgefährten), allerdings bei höherer Komplexität. Zudem sind ab 1. Januar 2027 potenziell Nachteile bei der Grunderwerbsteuer denkbar (Ende der Übergangsregelung des § 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. This meant that inheritance or gift tax was payable, even if the surviving spouse continued to live in the house themselves and met the other requirements.

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' civil-law partnership. The acquisition of joint ownership of a family home is also covered by the tax exemption pursuant to Section 13 para. 1 no. 4 letter a sentence 1 ErbStG. The decisive factor is not the ownership under civil law, but the enrichment of the shareholder's assets. The same applies to the period after the MoPeG and the abandonment of the joint ownership principle under civil law due to the fiction of Section 2a ErbStG. It is therefore clear that the transfer of shares in the spouses' GbR or family GbR is also covered by the tax exemption for family homes.

Further requirements for exemption

Schenkung des Familienheims (§ 13 Abs. 1 Nr. 4 Buchst. a ErbStG)

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

Übertragung des Familienheims im Todesfall (§ 13 Abs. 1 Nr. 4 Buchst. b und c ErbStG)

• Spouses, registered partners, children and grandchildren can inherit the family home tax-free if they use the property for their own residential purposes immediately and for at least ten years from the date of inheritance. Premature departure, letting or sale leads to retroactive taxation. The property must have previously been used by the testator himself or the move out must have been for compelling reasons.
• For children and grandchildren, the tax exemption is limited to 200 m² of living space; areas in excess of this are taxed on a pro rata basis.

Wichtig zu beachten

• Eigennutzung als Lebensmittelpunkt erforderlich. Das Familienheim muss im Inland, in der EU oder im EWR liegen. Ferien-, Zweit- oder vermietete Wohnungen sind nicht begünstigt.
• Mixed-use properties are favoured if residential use predominates.
• The exemption only applies to living space that is actually used.

Special features in the financing of GbR properties

• Borrowing at the level of the GbR can have a lasting negative impact on the creditworthiness of the shareholders.
• In practice, financing is therefore often provided via loans at shareholder level; the land charge is only created at the level of the (e)GbR.