Applicable Law: Which Inheritance Law Applies in the Event of Death?

In every estate and for every testamentary disposition, the first step is to determine which national law is applicable. The applicable law decides whether dispositions are valid, how intestate succession is structured, and whether claims to a compulsory portion exist.

The EU Succession Regulation (EU-ErbVO)

Since 17 August 2015, the EU Succession Regulation (EU Regulation No 650/2012) has applied in all EU Member States with the exception of Denmark, Ireland and the United Kingdom. The Regulation harmonises the conflict-of-laws rules in succession matters and governs both jurisdiction and the applicable law.

The fundamental connecting factor under the EU Succession Regulation is the habitual residence of the deceased at the time of death. Under Article 4, jurisdiction lies with the courts of the Member State in which the deceased was habitually resident. Under Article 21(1), the law of that State governs the succession as a whole. The scope of the EU Succession Regulation is to be understood broadly and covers all civil-law aspects of succession upon death. The statutory care legacy under § 677 ABGB, as a claim akin to the compulsory portion, likewise constitutes a succession matter within the meaning of Article 4, so that jurisdiction lies with the courts at the deceased’s last habitual residence (OGH 28 April 2026, 2 Ob 57/26k; CJEU 26 March 2026, C-618/24, Isergartler).

Where parallel proceedings are pending in two States, Article 17 of the EU Succession Regulation — which imposes an obligation to stay proceedings in the event of parallel proceedings — must in principle be considered. The OGH has clarified that Article 17 ceases to apply once the proceedings in the other Member State (in the case decided: Germany) have been concluded. The obligation to stay falls away upon the termination of the parallel proceedings, and the Austrian proceedings may then be continued (OGH 3 June 2025, 2 Ob 36/25w).

The Principle of Unity of the Estate: A Single Worldwide Estate

The EU Succession Regulation gives full effect to the principle of unity of the estate, both as regards jurisdiction and as regards the applicable law. Where the Austrian courts have jurisdiction under Article 4 because the deceased was habitually resident in Austria at the time of death, that jurisdiction extends to the entire worldwide estate. Immovable property situated in third States, such as Switzerland or the Principality of Liechtenstein, also forms part of this single estate and must therefore be taken into account when calculating the compulsory portion claims governed by Austrian law (OGH 28 April 2026, 2 Ob 25/26d).

Where immovable property situated in a third State has already been transferred separately to an heir there under the law of that State, this gives rise, from the perspective of Austrian law, not to a legal but at most to a factual division of the estate. A decision on the distribution of the estate issued in a third State is neither to be recognised nor enforced in Austria where no applicable treaty exists and reciprocity is not guaranteed. In a case concerning property in Spain and Liechtenstein, the OGH held that the term “distribution of the estate” (Einantwortung) in § 764 para 1 ABGB refers exclusively to the distribution effected by the Austrian court under Austrian law (OGH 28 April 2026, 2 Ob 25/26d).

Practice note:

Anyone holding assets in several States should bear in mind that the distribution of individual parts of the estate abroad does not pre-empt the assessment of the compulsory portion in Austria. As long as no distribution of the estate has taken place in Austria, the compulsory portion claim is directed against the estate and not against the (prospective) heir (OGH 28 April 2026, 2 Ob 25/26d). Forward-looking estate planning, and where appropriate a choice of law under Article 22 of the EU Succession Regulation, provide clarity here.

Exceptions: Manifestly Closer Connection

If, from the totality of the circumstances, it is clear that the deceased had a manifestly closer connection to another state, the succession is governed by the law of that other state (Art 21 para 2 EU-ErbVO). This may apply, for example, if an Austrian citizen moved their residence abroad shortly before death but maintained their closest ties to Austria.

Choice of Law: Actively Shaping Your Inheritance

To avoid uncertainty, any person can make an explicit choice of law (Art 22 EU-ErbVO). You can stipulate that the law of the state of which you are a citizen at the time of making the choice or at the time of death shall apply.

Example: An Austrian citizen living permanently in Spain can stipulate in her will that Austrian inheritance law shall continue to apply. This ensures predictability regarding substantive issues such as the capacity to inherit or compulsory portion rights.

Why a Choice of Law is Advisable

Since inheritance laws differ significantly internationally, a choice of law is often the safest way to arrange an estate according to personal wishes. This is particularly true for complex structures such as real estate ownership or corporate interests abroad.

Legal Situation Without Foreign Implications

Probate proceedings without any international connection continue to be assessed under Austrian law. For an overview of essential legal terms, please refer to our Legal Glossary.