Compulsory Portion Law in Austria: Entitled Persons and Claims

Austrian inheritance law stipulates that certain close relatives cannot be entirely excluded from the estate, despite a contrary testamentary disposition. These persons are entitled to a mandatory minimum share of the estate – the so-called compulsory portion (Pflichtteil).

Persons Entitled to a Compulsory Portion and Statutory Shares

According to current legislation (§ 757 ABGB), only the following persons are entitled to a compulsory portion:

Descendants (children and grandchildren).
The spouse or registered partner of the deceased.

The entitlement of ancestors (parents, grandparents) was abolished as part of the inheritance law reform. The compulsory portion for each child and the spouse amounts to one-half of what they would have received under intestate succession (§ 759 ABGB).

Example: If a married deceased person leaves three children, the spouse’s compulsory portion amounts to one-sixth, while each child is entitled to a compulsory portion of one-ninth.

Performance, Maturity, and Deferral (§§ 761 et seq. ABGB)

The claim to a compulsory portion is generally a monetary claim. However, it can be covered by dispositions mortis causa or inter vivos gifts. Even if these dispositions are subject to conditions or burdens that prevent immediate realization, they are suitable for covering the compulsory portion, although this must be taken into account as a reduction in valuation (§ 762 ABGB).

Maturity and Deferral: The claim arises upon the death of the deceased, but it can only be demanded one year after the death (§ 765 ABGB). Upon the instruction of the deceased or at the request of the heir, the compulsory portion may also be deferred for up to 5 years, or payment in installments may be ordered. A judicial extension to a maximum of 10 years is possible in special cases (§§ 766 et seq. ABGB).

Practical Tip: Deferral serves to protect the economic existence of the heir (e.g., in the case of owner-occupied apartments or businesses). The Supreme Court (OGH 2 Ob 219/23 d) emphasizes the time span of 20 years usually required in jurisdiction to preserve the economic basis.

Addition and Accounting of Gifts

To prevent circumvention of compulsory share entitlements through inter vivos dispositions, the Austrian Civil Code requires that certain lifetime gifts made by the deceased be added back to the estate for the purpose of calculating the compulsory share (Hinzurechnung). The rules on aggregation (§§ 781–787 ABGB) distinguish primarily between gifts to compulsory heirs and gifts to third parties.

For gifts to persons who are not compulsory heirs, § 782(2) ABGB provides a temporal limitation: gifts made more than two years before the death of the donor are, as a rule, excluded from aggregation. Gifts to compulsory heirs, by contrast, are governed by § 783 ABGB and are subject to no time limit — they are always taken into account, regardless of how long before the death they were made. An analogous application of the two-year period to gifts made to persons entitled to a compulsory share is not appropriate (OGH, 29 April 2025 , 2 Ob 23/25h).

If a gift that has actually been made is rescinded by mutual agreement between the donor and the donee, this retransfer does not in itself constitute a new gift subject to inclusion in the estate. The Supreme Court has emphasized that the purpose of Sections 782 et seq. of the Austrian Civil Code (ABGB)—protection against the erosion of the estate—is not affected by a mere reversal of the transaction, because, on balance, no financial benefit relevant for inclusion was conferred upon the decedent (OGH, 26 June 2025, 2 Ob 51/25a).

The Catch-all Provision (§ 781 para 2 subpara 6 ABGB)

In addition to classic gifts, the law also covers benefits that, according to their economic substance, are equivalent to a gratuitous transaction (e.g., succession rules in partnership agreements, gratuitous waiver of an inheritance). However, note: If there is no donative intent (e.g., in the case of genuine consideration such as a life annuity), accounting is excluded (OGH 2 Ob 184/22f, 2 Ob 205/22v).

Valuation and Inflation Adjustment

Gifts are valued at the time they were actually made, and the value determined in this way is then adjusted to the time of death according to the Consumer Price Index (CPI) published by Statistics Austria (§ 788 ABGB).

Liability

If the estate is insufficient to cover the compulsory portions, the donee is liable proportionately according to the value of their gifts. Generally, the donee is only liable with the gifted item. If the item or its value no longer exists, the donee is liable with their entire assets only if they allowed this loss of assets in bad faith (§§ 789 et seq. ABGB).

Right to Information (§ 786 ABGB)

Persons entitled to a compulsory portion have a right to information against the estate, the heirs, and the donee.

The right to information under § 786 ABGB is designed to enable the person entitled to a compulsory portion to calculate or at least estimate their claim. It is sufficient for the person seeking information to assert and prove circumstances that point to gifts relevant to the compulsory portion — it is not necessary to prove the gifts themselves. Where the claim is directed against recipients of gifts within the close family circle, the threshold for the required indications is low. In the case of monetary gifts, the amount must be specified; for gifts of property, the obligor need not carry out a valuation but must disclose the subject matter and timing of the gift. Whether a particular transfer constitutes a gift subject to addition, or a contribution with the character of maintenance, is not a question the recipient may decide unilaterally in cases of doubt — to allow otherwise would defeat the purpose of § 786 ABGB (OGH 26 February 2026, 2 Ob 223/25w).

Indicia of gifts already made justify the claim for information about further donations (OGH 2 Ob 244/22d).
An obligation to provide receipts (copies of invoices, bank statements, etc.) does not arise directly from § 786 ABGB (OGH 2 Ob 244/22d).
Extended information obligations may apply to private foundations (see further regarding OGH decision 2 Ob 115/25p here).

In the context of a step-by-step action under Section XLII of the Austrian Code of Civil Procedure (EGZPO), the Supreme Court has clarified that voluntarily taking an oath in non-contentious proceedings does not grant the creditor the right to ask questions, and that the heir’s duty to provide information must be fulfilled out of court. There is no obligation for the creditor to tolerate the taking of an oath in court; the proceedings under Art. XLII EGZPO are limited in this respect to the acceptance of the declaration (OGH 25. March 2025, 2 Ob 222/24x). A contractual agreement to tolerate the appraisal of gifted objects is enforceable. By contrast, Art. XLII EGZPO alone—i.e., without a contractual basis—does not give rise to a statutory obligation to tolerate an appraisal (OGH 29 April 2025, 2 Ob 39/25m).

Burden of Proof

The burden of allegation and proof for exceptional circumstances lies with the party being claimed against, i.e., the heir or the donee (OGH 2 Ob 224/22p).

A shift of the burden of proof due to “proximity to evidence” is only considered in strictly limited exceptional cases and requires that the opponent actually has the corresponding knowledge available. The mere fact that a claim for manifestation has been executed and a formally complete accounting exists does not lead to a reversal of the burden of proof for assets not included in the accounting (OGH 2 Ob 18/23w).

Waiver of Compulsory Portion and Revocation

Under § 551 para 1 ABGB, it is possible to waive the right of inheritance in advance by contract with the testator; this also excludes the compulsory portion claim (para 2). The cancellation of such a waiver agreement requires written form.

Where a waiver agreement covering both inheritance and the compulsory portion was expressly declared by the testator to be freely revocable at the time of its conclusion, the agreement cannot be characterised as an irrevocable contract for the benefit of a third party (in the case decided, the testator’s spouse). A subsequent consensual cancellation of the waiver agreement — in the required written form — does not in these circumstances require the spouse’s consent. The cancellation is not an abuse of rights even if it is detrimental to the spouse, provided the testator had a legitimate interest in enabling the children to assert their compulsory portion claims without restriction. There is no legal duty under inheritance law to protect a spouse from the compulsory portion claims of the testator’s children (OGH 20 January 2026, 2 Ob 222/25y).

Life Insurance

The insurance sum from a life insurance policy paid to the beneficiary named in the policy does not fall into the estate. If it is essentially a gratuitous allocation by the deceased, it is subject to addition and accounting according to § 781 para 2 subpara 6 ABGB. Allocation from life insurance is exempt from accounting if it serves to provide for the surviving spouse and does not exceed a reasonable measure according to financial circumstances (§ 784 ABGB).

Reduction and Disinheritance

A person may be deprived of their compulsory portion (disinheritance, §§ 770 et seq. ABGB) if they have committed a deliberate criminal offense against the deceased punishable by more than one year’s imprisonment, or against close relatives (spouse, partner, children, etc.). Disinheritance is also possible if the person intentionally thwarted the fulfillment of the deceased’s true last will, caused severe mental suffering, or grossly neglected family law duties. Furthermore, disinheritance may be possible in cases of extreme indebtedness or spendthrift behavior.

If the legal ancestry of a claimant has not yet been established (e.g., due to a “paternity swap” under § 150 ABGB), the claim cannot be exercised before the status decision becomes final. The Supreme Court has clarified that the statute of limitations in such cases only begins to run upon the finality of the status decision (OGH 2 Ob 175/22g).

If the deceased and the claimant never had, or at least for a longer period prior to death did not have, a close relationship as usually exists between relatives in a family, the deceased may reduce the compulsory portion by half (§ 776 ABGB). This does not apply if the deceased groundlessly avoided contact.

Practical Tip:
Departing from previous law, since January 1, 2017, a lack of a close relationship over a longer period (at least 20 years) prior to death is sufficient for a reduction of the compulsory portion (RV 668 BlgNR 25. GP 31).

For further information on legal terminology, please visit our Legal Glossary or our overview of Forms of Wills.