Anyone who writes a will is generally free to decide who inherits. However, this freedom to dispose of one’s estate has an important limitation: the statutory share. In Austria, close relatives have a legal right to a minimum portion of the estate—regardless of what the will states. But who is entitled to this share, how much is it, and under what circumstances can it be waived?
Who is entitled to a statutory share?
Austrian inheritance law provides for the statutory share in Sections 756 et seq. of the Austrian Civil Code (ABGB). The following persons are entitled to a statutory share:
The deceased’s children (and their descendants, if the child predeceased the deceased), the spouse or registered partner, and—if there are no children—the deceased’s parents.
Siblings, grandparents, and other relatives, however, are no longer entitled to a statutory share. Since the 2017 inheritance law reform, they no longer have a claim to a statutory share.
How much is the statutory share?
The statutory share is equal to half of the legal share of the inheritance. If, under the rules of intestate succession, a person would inherit one-quarter of the estate, they are entitled to a statutory share of one-eighth of the estate.
Here is an example: The deceased leaves behind a spouse and two children. Under the rules of intestate succession, each of them inherits one-third. Each person’s statutory share is therefore one-sixth of the estate’s net value.
What is included in the estate?
The statutory share is calculated based on the net estate. This consists of all assets minus liabilities (debts, obligations, and expenses). Gifts made by the deceased during their lifetime may also be included under certain circumstances—more on that in a moment.
What about gifts made during one’s lifetime—how are they taken into account?
A common point of contention: Many testators transfer assets during their lifetime—such as real estate to a child or sums of money to a new partner. The law protects those entitled to a statutory share by including such gifts in the estate under certain conditions (Section 781 of the Austrian Civil Code).
Gifts made to beneficiaries entitled to a statutory share are generally taken into account indefinitely. Gifts made to third parties, however, are only taken into account if they were made within the two years prior to death. This is intended to prevent the decedent from giving away their assets shortly before death in order to circumvent claims to a statutory share.
Can the statutory share be revoked?
Yes—but only within strict legal limits. Under Section 770 of the Austrian Civil Code (ABGB), disinheritance is possible if the beneficiary of the statutory share has, for example, committed a criminal offense against the decedent, left the decedent helpless in a time of need, or has been convicted of an intentional criminal offense and received a final sentence of imprisonment for more than one year.
Disinheritance must be expressly provided for and justified in the will. It is subject to strict judicial review.
How is the statutory share claimed?
The statutory share is not an automatic right to an inheritance, but rather a monetary claim under the law of obligations against the heirs. It must be actively asserted. The person entitled to the statutory share has a right to receive information from the heirs regarding the estate’s assets and to receive payment of the statutory share in cash.
The statute of limitations is three years from the date on which the death and the disadvantage are discovered. In any case, the claim becomes time-barred after 30 years.
Can one waive their right to a statutory share?
Yes. A waiver of the statutory share is possible during the testator’s lifetime through a notarized agreement. This waiver may be made in exchange for compensation (in return for a settlement) or without compensation and must be notarized. It is often a component of inheritance agreements or gifts that count toward the statutory share.
Conclusion
The statutory share guarantees close relatives a minimum portion of the estate—regardless of the testator’s last will and testament. Especially in cases involving complex family structures, blended families, or substantial lifetime gifts, disputes can quickly arise regarding the amount, offset, and timing of the claim.
Testators who wish to pass on their assets in a specific manner should act early—for example, by executing a notarized waiver of the statutory share or making a structured lifetime gift. Heirs who have been overlooked should not put off asserting their claim: The three-year statute of limitations begins to run from the date they become aware of the opening of the estate.
In both cases, legal advice is essential. As an experienced law firm specializing in inheritance law, we are here to assist you in Vienna—from the initial assessment through to enforcement in court.
