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BGH: Loss of legal capacity is not an obstacle to adoption

BGH, decision of 4 June 2025 - Ref. XII ZB 320/23

In a recent ruling, the Federal Court of Justice (BGH) clarified that the loss of legal capacity after an application for an adult adoption has been submitted does not constitute an obstacle to adoption.

The case

A married couple wanted to adopt an adult who was also married. The necessary consents had been obtained. After the proceedings were initiated, the family court determined that one of the adopting spouses no longer had (full) legal capacity. The adoption application was then rejected. The spouse then died. The appeal lodged by the wife and the adopting spouse was rejected by the OLG and the appeal on points of law to the BGH was allowed.

The BGH overturned the decision and referred the case back to the OLG for reconsideration.

Key statements of the BGH

  • The decisive factor is the legal capacity at the time of application.
    This must be positively established. If there are any doubts, the application is inadmissible.
  • Subsequent loss of legal capacity is irrelevant.
    The loss of legal capacity - or even the death of the adopter - after an effective application has been made does not prevent an adoption.
  • No legal basis for ongoing review.
    Neither the legislative materials nor the system justify a subsequent review of legal capacity until the adoption is pronounced.
  • Differentiation from the adoption of minors.
    The situation is different for minors, as the best interests of the child are paramount here and the legal incapacity of the adopting party regularly causes the procedure to fail.

Significance for practice

The decision emphasises the particular importance of establishing legal capacity at the time of application.

  • Notary's offices must check and document these carefully. Medical opinions or expert reports may be required to back this up.
  • Subsequent impairment of legal capacity or the death of the adopter shall not render the application inadmissible.
  • Irrespective of this, the moral justification (§ 1767 BGB) as a material requirement.

Conclusion

With this decision, the Federal Court of Justice has clarified a previously controversial issue. The following applies to adoptions of adults: the decisive factor is full legal capacity at the time of application. A later loss of capacity - whether due to illness or death - does not prevent the adoption.

Dr Marko Oldenburger

Specialist lawyer for family law and medical law

Dr Oldenburger advises and represents individuals, different and same-sex couples on the path to fertility fulfilment, including surrogacy and international adoptions. Send him an e-mail at (oldenburger@schneiderstein.de) or use our Contact form.
By the way: We offer country-specific package prices for surrogacy and international adoption procedures from A-Z (fixed prices) or modular fees depending on your service requirements. This means that your expenses can be calculated from the outset. Further information on the desire to have children here.