Tuesday, June 26, 2018

Filial Claims - Does Germany Look to In-Laws for Maintenance Claims?

Recently a U.S. reader of some of our "Filial Friday" posts in the the Elder Law Prof Blog inquired about Germany's reinvigorated use of filial support laws.  He asked:

"Is an inlaw responsible for adult support in Germany? For example, if an [American] person is married to a German [living in the U.S.], the German doesn't work [in the U.S.] and has no income, will the American spouse's income be garnished to pay for the adult care of the mother in law?"

In reading an English translation of Title 3 provisions of the German Civil Code on "Obligation to Maintain," I find that only a spouse of an indigent or "lineal" relatives are identified as having an obligation to maintain "each other."  See Sections 1601 and 1608. 

However, when adult children in the U.S. receive requests from Germany authorities, they are often asked to provide detailed financial information, including identification of all marital property in the U.S.  Recent German correspondence I reviewed asked the American daughter, "Do you or your spouse/partner in a registered civil partnership hold assets?" The married daughter was then asked to identify the "type of assets, including cash, savings, capital, land or property, and the value."   This type of request for financial information seems to arise under Section 1605 of the Civil Code, which provides:

"Where the person with an obligation to maintain lives under the matrimonial property regime of community of property, his obligation to maintain towards relatives is determined as if the marital property belonged to him."

Further, Section 117 of Germany's Social Security Law provides that where the government is providing social welfare benefits, liable family members must "inform the social welfare body of their income and asset situation."   

So far, I haven't seen an American child of an indigent German parent "compelled" to pay maintenance, despite German government inquiries and letters suggesting this is possible if family members fail to cooperate voluntarily.  I suspect there are instances where the demands for financial information are frightening enough that some Americans agree to provide "some" voluntary support.  I'm always interested when Americans receive requests from foreign authorities under this new wave of filial law obligations. The cross-border fact patterns are perfect for my Conflict of Laws course.  One of these days, we'll probably see some formal test cases. 

Americans aren't the only ones surprised by the vigor with which German authorities are seeking reimbursement for state care costs from relatives.   Here's one man's dilemma from 2014, captured in a German newspaper Süddeutsche Zeitung, as translated into English for the Financial Times.  

https://lawprofessors.typepad.com/elder_law/2018/06/filial-claims-does-germany-look-to-in-laws-for-maintenance-claims-.html

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