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)

In every estate with an international element, the threshold question is which law applies. 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.

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).

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.