Parent Maintenance – When children have to pay for their parents

elternunterhalt 02 v01Once your own parents come to the nursing home, the children have to deal with who is paying for the care costs. If the income and assets of the mother or father are no longer sufficient, the offspring is obliged to maintain. But the so-called parent maintenance has made the legislature very complicated. In particular from when and how much the children have to pay for the care of their parents.

 

Parental maintenance in case of long-term care

According to section 1601 of the Civil Code (BGB) “relatives are obliged in a straight line to provide each other with maintenance”. Straight lines mean, for example, that parents have to provide for their children or grandparents for their grandchildren financially and vice versa, but siblings are not dependent on each other for maintenance. Clause 1602 (1) also clarifies that persons who are unable to “entertain themselves” are entitled to maintenance.

The topic of parenting is always interesting when the parents become a nursing case. The then incurred care costs, for example, for the accommodation and meals in a nursing home, are only partially covered by the statutory long-term care insurance. If a parent can not pay for the remaining costs, the welfare office will start. This turns in the further course to the children – with reference to the maintenance obligation. With the parents’ maintenance, children and indirectly also children in law secure the livelihood of (parents-in-law) parents, provided that they are financially capable of doing so.

Editorial Tip

The maintenance claim can be lost through misconduct of the parent concerned. These include, but are not limited to, neglect or contact absences, mental cruelty or a crime against one’s own child. Even self-inflicted neediness, such as drug addiction or alcoholism, forfeits the claim. Another reason may be the inadequate build-up of old-age insurance.

Legal maintenance of children

As soon as the Social Welfare Office participates in the home expenses of the parent in need of care, the legal entitlement of the parents to pay maintenance is transferred to the social assistance institution. The legal basis for this is the paragraph 94 of the twelfth Social Code (SGB XII). In this case, the children receive a transfer notification from the social welfare office together with the request to disclose their own income and assets as well as the spouse’s income. This should be followed in time and form. With the data received, the authority checks to what extent parental maintenance has to be paid. There then comes a request for payment, which becomes binding if the debtor agrees. If he does not agree with the calculation for various reasons, the case goes to court. There it must then be decided to what extent the demand of the social welfare office is justified.

Stolperfalle

The Social Welfare Office can reclaim a donation from parents to dependent persons less than 10 years ago. An exception is the gifted home in which the parents had a right of residence. Now that they live in the nursing home, they no longer perceive this, so the social carrier counts the local rent for this living area as income, which can affect the amount of parental maintenance.

How is the amount of maintenance calculated?

In order to set the level of parental maintenance, the Social Welfare Office requires all relevant income data from the breadwinner and his spouse. In addition, the own assets are taken into account in the calculation. In the end it is important to know how high the adjusted income, the deductible and the amount of the protective assets are.

Crediting the income for the maintenance claim

The net income of the debtor will take into account certain items in the calculation of parental maintenance which will reduce the amount of maintenance. These include, for example, contributions to health insurance and private pensions. For the latter, five percent of the annual gross income can be claimed. Also deductible are the travel costs to the workplace and costs for the illness or occupation-related purchase of a car. Also current installment payments and maintenance claims of own children must be considered in the calculation.

After all relevant expenses have been deducted from the net income, this results in the so-called adjusted income, on which the calculation of parental maintenance is based. If the adjusted income is above the minimum self-retention, 50 percent of it must be paid as parental maintenance. The deductible ensures that the debtors are not overburdened and themselves become social welfare. For single persons, the deductible currently stands at 1,800 euros, and the spouse is entitled to an additional 1,440 euros (as of 2015). There are also allowances for children, which are based on the so-called Düsseldorfer table.

sample calculation

The adjusted net income of a single person without children is € 2,100, € 300 above the deductible of € 1,800. Accordingly, the social welfare office has a right to parental maintenance in the amount of 150 euros.

If both spouses have their own income, the calculation of parental maintenance becomes more complicated. Thorough advice from a specialist is therefore inevitable and generally useful as soon as the Social Security Office answers.

Image result for siblingsConsideration of siblings

Every child is dependent on parents. Accordingly, the social welfare office also turns to the siblings of a debtor. The financial claim is not distributed evenly, but is dependent on the income and assets of each sibling. So it may be that you have to pay even parent maintenance, while the own brother is exempt from it, since his adjusted income is below the deductible.

Crediting the assets for the maintenance claim

In addition to income, the assets are taken into account when calculating parental maintenance. However, if this is protected, the recovery unreasonable or the use of the assets of social services would endanger the adequate maintenance of the debtor and his family, the reserves must not be touched by the Office. Every maintenance person is entitled to a protective capacity. Only when the chargeable assets exceed this amount, parental maintenance must be paid.

In general, there are no binding figures for the amount of the protection, but orientation values. Thus, the protection of persons who live in their own house can amount to 25,000 euros. Incidentally, the social welfare office may not demand the sale of the self-occupied property. Who lives for rent, can have a protective capacity of 75,000 euros. The Federal Court of Justice (BGH), however, has decided that the protection of individual assets may also be higher, especially if it helps to secure one’s own old-age provision.

Beauty must be calculated individually

The judgment XII ZR 98/04 of the Federal Court of Justice of 30 August 2006 is particularly frequently cited when considering the assets. According to this, children with their assets do not have to finance their dependent parents if this is necessary for adequate living and retirement provision. The latter includes not only a self-used property, but also life insurance, jewelry or securities. As the adjusted income accounts for five percent of the annual gross income for private provision, the BGH assumes that it has accumulated a specific amount of four percent interest for retirement provision. This pension fund may not be used by the social welfare office. The determination of the protective capacity is always an individual case decision, since it depends on the age and gross income of the debtor.