Waiver of Inheritance and Unworthiness to Inherit
Under Austrian law, a potential heir’s right to an estate can be terminated in two ways: through a proactive waiver of inheritance during the testator’s lifetime or through the legal grounds of unworthiness to inherit.
Waiver of Inheritance
By means of a waiver of inheritance (Erbverzicht), a potential heir waives their future right of inheritance in an agreement with the deceased while the latter is still alive (§ 551 ABGB). For a waiver of inheritance to be legally binding, it strictly requires the form of a notarial act or a court protocol.
A waiver of inheritance is a contract with the testator, which may also be structured as a contract for the benefit of a third party. Whether the third party acquires an irrevocable right depends on the circumstances of the case and on how the agreement is to be interpreted. Where the testator expressly indicated to the waiving parties at the time the agreement was concluded that he could vary the waiver at any time, this precludes the agreement from being treated as an irrevocable contract for the benefit of the third party. In that event, the consensual cancellation of the waiver agreement does not require the third party’s consent, even where the cancellation withdraws advantages from that party. The cancellation is not an abuse of rights where the testator’s purpose was to ensure that his children could assert their compulsory portion claims without restriction — since Austrian law does not impose a marital duty to protect a spouse against the compulsory portion claims of the testator’s children (OGH 20 January 2026, 2 Ob 222/25y).
Scope and Strategic Planning
Unless otherwise agreed, a waiver of inheritance extends to both the compulsory portion and the descendants of the person waiving their rights. Such arrangements are highly practical for inter vivos dispositions, such as the timely transfer of a business or real estate. In most cases, the party waiving their rights is paid a compensation or abfindung (severance).
The revocation of a waiver agreement must be made in writing. These measures are essential tools to avoid inheritance disputes and ensure a secure transfer of family assets to the next generation.
Unworthiness to Inherit
Unworthiness to inherit (Erbunwürdigkeit) applies if a potential heir acts against the testator or the estate in a way that legally disqualifies them from receiving any assets (§§ 539 ff ABGB). This may occur if a potential heir:
- Exerts a negative influence on testamentary dispositions (e.g., forcing the deceased to draft a will or using deceit).
- Attempts to frustrate the true will of the deceased in any other way.
- Is guilty of a deliberate criminal offense against the deceased or the estate, punishable by more than one year’s imprisonment.
As a consequence of the unworthiness, the intestate succession may come into effect. However, the grounds for unworthiness are disregarded if the deceased has granted forgiveness, either explicitly or implicitly.
For a detailed overview of legal terms in Austrian law, please refer to our glossary.