The selfless care of a close relative is an invaluable service that is often provided over many years. To ensure that this commitment is not unrewarded after the death of the person being cared for, the legislator has created the care legacy. This is a legal entitlement to which caregivers are entitled, regardless of whether the deceased has made provision for this in a will. This legal institution has a special status in inheritance law, as it combines the characteristics of a legacy with the strong protection of the right to a compulsory portion and is regulated in Sections 677 and 678 of the Austrian Civil Code (ABGB).
The requirements in detail
A claim to the nursing legacy arises if a person close to the deceased has cared for them to a significant extent for at least six months during the last three years prior to their death. According to Section 677(3) of the Austrian Civil Code (ABGB), persons close to the deceased include, in particular, legal heirs such as children or siblings, their spouses, registered partners or life partners and their children, as well as the life partner of the deceased and their children.
The care must not be of a minor nature. Case law is based on a guideline value of more than 20 hours per month on average. The term "care" itself is broadly defined and includes any activity that serves to provide support and assistance; it does not have to constitute professional nursing care. The Supreme Court has clarified that mere visits or phone calls are generally not sufficient. However, organizational activities, such as coordinating doctor's appointments or mobile care services, can be considered care services if the deceased was no longer able to do so themselves.
The amount of the claim: a question of the individual case
The amount of the care bequest depends on the type, duration, and scope of the services provided. There are no flat rates. When assessing the amount, the courts do not base their decision on the costs that would have been incurred for professional caregivers, but rather on an appropriate wage for the specific services provided by the caregiver, as stipulated in Section 678 (1) of the Austrian Civil Code (ABGB). Information about the level of care received is also used to determine the objective need for care. The final amount is determined at the discretion of the judge in each individual case; for practical implementation, Section 174a AußStrG contains special procedural rules for claiming care services in probate proceedings.
Priority over the compulsory portion
One of the most important practical features of a care legacy is its strong position in relation to other claims. According to Section 678(2) of the Austrian Civil Code (ABGB), it is payable in addition to the compulsory portion and is not deducted from the estate when calculating the latter. If the estate is insufficient to cover both the care legacy and the compulsory portions in full, the care legacy takes precedence. In such a case, the compulsory portions are reduced, but not the claim of the caring relative. The beneficiary of a care legacy is also not required to contribute to covering the compulsory portion claims of others.
The role of agreements and grants
According to Section 677(1) of the Austrian Civil Code (ABGB), there is no entitlement to a care legacy if a payment has been granted or remuneration agreed. If the caregiver already receives payments for their work, for example through the transfer of care allowance, these will be taken into account if there is a clear connection to the care provided. However, payments based on other grounds, such as the long-term sharing of living expenses between partners, do not reduce the entitlement.
If an agreed consideration or allowance does not fully cover the value of the care provided, the difference remains claimable. A complete waiver of the care legacy in advance is legally delicate. Due to its nature, which is similar to a compulsory portion, such a waiver, if permissible at all, would only be conceivable if strict formal requirements were met, for example in the form of a notarial deed or a court record. A mere informal agreement to provide care free of charge therefore does not generally exclude the legal claim.
