When children are liable for their parents

Jörn Hauß is a specialist lawyer for family law. He is a member of several commissions, committees, and associations and, according to Focus, is one of the 100 best family law attorneys in Germany. For famPLUS, he provides nationwide personal and telephone advice on all questions related to parental maintenance. We spoke with him and received answers to some basic questions.

Why must children pay support for their parents?

One could easily answer the question by referring to the law. According to § 1601 BGB, relatives in a direct line owe each other maintenance. But it is not that simple. If one searches for a legal-ethical justification for the maintenance obligation, one finds nothing that would justify the fundamental rights infringement that occurs through parental maintenance. Moral, ethical, religious, and ideological reasons do not serve as justification. They may be sufficient for individual citizens as a basis for legitimacy. However, they do not legitimize a state intervention in a secular society. Individually, one might consider 'gratitude' for care during childhood and adolescence as sufficient legitimacy. More than 150 years ago, Schopenhauer noted that gratitude is not a duty. Therefore, parental maintenance rests on a very shaky foundation for justification, which is why the children obliged to pay maintenance are also privileged in many respects by legal practice compared to other maintenance situations.

What does the long-term care insurance cover?

The nursing care insurance pays between 1,064 and 1,612 € for the inpatient accommodation of parents depending on the care level. In special cases, slightly more. However, this is usually not enough to cover the needs of the person in need of care. Nursing homes cost between 3,200 and 4,500 € per month. Even with the inclusion of the nursing care insurance benefits, the average pensioner cannot finance such costs.

What does the social welfare office pay?

The social welfare office pays for needs that cannot be covered by the care-dependent person's own income, assets, and care insurance benefits. If the pension is lower than the subsistence level, it is topped up to the social assistance level through basic security. Due to this basic security, children generally cannot be relied upon, but they can be due to the additional care benefits provided by the social welfare office.

Many children take care of their parents at home or provide caregiving services. Can they still be forced to pay alimony?

In these cases, there is generally no unmet need for the person in need of care. The living costs would be covered by their own pension or basic security, and the care needs would be financed through long-term care insurance.

How is child support calculated?

The maintenance needs of the parents are based on their needs. However, if they cannot finance these themselves, they must choose a nursing home from the lower cost segment. Children are also not required to finance preventive accommodation in a retirement home. As long as elderly people can still live autonomously in their own apartment, they cannot choose another more costly housing and lifestyle. This is required by the legal duty to consider the interests of the children responsible for maintenance. The presence of a care level generally indicates that autonomous living is no longer possible.

Is there an age limit, either upper or lower, from which children must pay maintenance for their parents?

No. The maintenance obligation of the children depends on income, not age.

Is there a financial and/or time limit for parental support?

The financial cap is defined by the unmet needs of the parents that cannot be covered by their own income, assets, and insurance benefits, as well as the children’s legal ability to provide support. Individuals obligated to provide support who live alone have a deductible of €1,800 plus half of the income exceeding that amount, while couples have a deductible of €3,240 plus 45 percent of the income exceeding that amount. Since the income of the children can be quite generously adjusted for existing debts, priority support obligations, and retirement provisions, no one needs to fear being financially ruined by parental support.

Are the children-in-law also obligated to pay?

No. Since sons- and daughters-in-law are not directly related to the parents-in-law, they are not obligated to provide maintenance. Their income only indirectly affects the child's ability to pay. However, if the child has no income, a high income of the son- or daughter-in-law would not lead to the ability to pay maintenance under legal terms. In these cases, the child's 'pocket money liability' is usually not enforced by social welfare agencies, and rightly so.

Even if the spouses have agreed to a community of property?

The choice of marital property regime has no effect on the maintenance obligation arising from the marriage between the spouses. However, the separation of property allows the child to receive a higher maintenance payment, if and only if the income of the child-in-law is higher than that of the child. A lower-earning child-in-law reduces the child's legal capacity to provide maintenance.

Do the children also have to pay maintenance if the parents or the parent have sufficient assets, but these are not liquid?

Such cases are practically hard to imagine. Before being claimed for support by social welfare agencies or children, parents must exhaust their entire assets, leaving only a remainder of €2,600. There are also families where the children, for whatever reason, no longer have contact with their own parents. What reasons are there that support does not have to be paid?

Lack of contact is not a so-called reason for forfeiture. Family law aims to promote familial unity and does not reward lack of contact. However, if the lack of contact is an expression of a deep disturbance in the parent-child relationship, because during childhood or youth there was a breach of the duty of care, or incidents of violence, physical, sexual, or emotional abuse, a maintenance claim may be forfeited. Even if the parent's need for care is caused by drug, medication, or alcohol abuse, a child can successfully defend against being required to support them financially.

Who determines how much must be paid?

If an agreement with the social welfare agency is not reached, the family court decides. Under no circumstances should children accept a claim from the social welfare agency without question. Almost always, these claims have the potential for correction in favor of the children. Usually, it is also possible to reach an agreement between the social welfare agency and the children liable for maintenance. Contentious court proceedings are relatively rare given the high number of cases.

The payment request is on the table. What do you advise your clients? Pay or have it reviewed?

Even if it should be interpreted as professional interest on my part, I advise everyone to have a maintenance claim from social welfare agencies checked for accuracy. Lawyers usually charge no more than €190 to €250 (plus VAT) for this. Considering that an obligation to provide maintenance often lasts for many years, the cost-benefit ratio of such a check is good. Only very well-off children cannot hope for relief with relatively small claims from social welfare agencies. For employees whose employers have concluded a framework agreement with famPLUS, the costs are even covered by famPLUS.

We advise on approximately 800 parent maintenance cases per year. Almost always, parental maintenance claims can be reduced. In many cases, no maintenance is owed at all. Therefore, it is often possible to wait for a maintenance claim from the social welfare provider.

I only know that many affected people are very worried about parental maintenance. These worries are mostly unfounded. In these cases, qualified advice is extremely reassuring.

In any case, those seeking advice should ensure that the advisor has experience with parental support when choosing a consultant. Not every specialist attorney for family law has this. Therefore, asking this when making an appointment is not only in the interest of the client but also of the attorney, who ultimately also has an interest in providing their clients with highly qualified advice and not disappointing them.

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