Die gesetzliche Erbfolge - Grundlagen (Nachkommen, Ehepartner, Vorfahren)

Intestate Succession in Austria

In practice, intestate succession (statutory succession) is the most frequently applied method of asset distribution (§§ 727 et seq. ABGB). It takes effect if the deceased has not concluded an inheritance contract, has not created a testamentary disposition covering the entire estate, or if the appointed heirs do not obtain the inheritance.

The Parentela System (§§ 731 et seq. ABGB)

In the case of intestate succession, Austrian inheritance law follows the so-called parentela system. This system distinguishes between different lines (parentelae) of succession:

  • First line: Formed by the descendants. Austrian law no longer distinguishes between children born in or out of wedlock. The first line consists of the children of the deceased and their descendants (§ 731 para 1 ABGB; §§ 732 et seq. ABGB).
  • Second line: Comprises the parents of the deceased and their descendants (siblings, nieces, and nephews of the deceased) (§ 731 para 2 ABGB; §§ 735 et seq. ABGB).
  • Third line: Formed by the grandparents of the deceased and their descendants (uncles, aunts, cousins) (§ 731 para 3 ABGB; §§ 738 et seq. ABGB).
  • Fourth line: Formed by the great-grandparents of the deceased. In this line, only great-grandparents living at the time of death are considered; their descendants are not taken into account (§ 731 para 4 ABGB; § 741 ABGB).

Right of Representation

If children of the deceased have predeceased them, they are represented by their respective descendants in equal shares. This right of representation (or right of entry) applies to lines 1, 2, and 3. It always moves “downwards” (i.e., in favor of descendants, not ancestors).

Example: Right of Representation

Example Intestate Succession

An unmarried deceased person has two sons (Son 1 and Son 2) and one daughter. Son 1 is alive and has no descendants. Son 2 predeceased the father, leaving behind two grandchildren (GC 1 and GC 2). The daughter is alive and has two children (GC 3 and GC 4).
Result: Son 1 and the daughter each receive one third. The predeceased Son 2 is represented by his children GC 1 and GC 2. They share his third and receive one sixth each. The children of the living daughter (GC 3 and GC 4) are not considered during her lifetime.

Shares of Spouses and Registered Partners

In addition to the relatives, the spouse (in a subsisting marriage) or the registered partner (in a subsisting registered partnership) is entitled to a statutory share of the estate:

  • Alongside descendants (first line): The share is one third.
  • Alongside parents (second line): The share is two thirds. If a parent has predeceased the testator, their share also falls to the spouse or registered partner (§ 744 ABGB).
  • In other cases: The spouse or registered partner inherits the entire estate, displacing the siblings and grandparents of the deceased.

Example: Spouse/Registered Partner and Descendants

Inheritance share spouse and children

The deceased was married (or in a registered partnership) at the time of death and leaves behind one daughter. The spouse/registered partner inherits one third alongside the child. The daughter receives the remaining two thirds.

Requirements and Statutory Legacy

The right of inheritance for the spouse or registered partner only exists if the marriage or registered partnership is subsisting at the time of death. A divorced spouse or former registered partner has no statutory right of inheritance. However, depending on the divorce settlement, maintenance claims against the heirs may persist.

Statutory Legacy (Pre-legacy)

The spouse or registered partner is entitled to the statutory legacy (gesetzliches Vorausvermächtnis). This includes the right to continue living in the marital or partnership home and the right to use the household chattels, provided they are necessary to maintain the previous living conditions (§ 745 para 1 ABGB). Further details can be found under Tenancy Rights and Ownership Partnership.

Maintenance Claims

Furthermore, the spouse or registered partner has a claim for maintenance against the estate or the heirs (pursuant to § 94 ABGB or § 12 EPG), provided they do not remarry or enter a new registered partnership. This claim is limited to the value of the estate and is subject to the deduction of personal income or assets. A similar provision exists for children under § 233 ABGB.

For an overview of essential legal terms, please visit our Legal Glossary.