Pflegevermächtnis

Statutory Care Legacy in Austria

The statutory care legacy (Pflegevermächtnis) is designed to honor the care services provided to the deceased by close relatives or persons close to them, ensuring that such contributions are financially recognized within the estate distribution.

Prerequisites for the Claim

A claim to the statutory care legacy is available to persons close to the deceased. Under Austrian law, this includes persons from the circle of statutory heirs, as well as their spouses, registered partners, cohabitants, and children. To be eligible, the claimant must have:

  • Provided care for the deceased for at least six months during the last three years prior to their death.
  • Provided care to a significant extent (averaging more than 20 hours per month; RV 668 BlgNR 25. GP 17).

The statutory care legacy is only granted if no other remuneration or consideration was provided for the care services (§ 677 ABGB).

Amount and Scope of the Legacy

The amount of the legacy is determined by the type, duration, and scope of the services provided (§ 678 ABGB). According to recent jurisdiction, the valuation is based on reasonable remuneration analogous to § 1152 ABGB, minus any benefits already received by the caregiver as a counter-performance (OGH 2 Ob 65/24 h).

Notably, the care legacy is granted in addition to the compulsory portion and alongside other benefits from the estate, unless the deceased has explicitly ordered otherwise.

Definition of Care (OGH Jurisdiction)

The claimant does not need to be the sole provider of care. Even when professional care is utilized (e.g., in a nursing home), efforts to improve the psychological well-being of the deceased can qualify for a care legacy (OGH 2 Ob 33/25 d). This may include:

  • Regular walks or reading aloud, if the deceased was no longer able to do so independently due to their need for care.
  • Support in daily activities that goes beyond mere social visits.

Note: Occasional phone calls or casual visits do not meet the legal definition of “care” in this context.

In its decision 2 Ob 182/25s, the Supreme Court further clarified the distinction between a legacy for care (§ 677 ABGB) and agency without authority (§§ 1035 et seq. ABGB). If the claim for a legacy for care fails to meet the formal requirements of § 677 ABGB, it must be examined, as a secondary matter, whether a claim based on agency without authority exists. Claims under agency without authority pursuant to §§ 1035 et seq. ABGB thus represent an alternative if the legacy for care is unenforceable for legal reasons. Both bases for claims are closely linked in substance: The care services actually provided are factored into both the valuation of the legacy for care and the claim for compensation under agency without authority.

Due Date, Statute of Limitations and Liability

As a statutory monetary legacy, the due date rule of § 685 ABGB applies: The claim can only be asserted one year after the death of the testator.

Regarding the statute of limitations, the Supreme Court (OGH 2 Ob 223/22s) has clarified that this one-year period acts as a deferment that suspends the limitation period. Therefore, the three-year limitation period according to § 1487a ABGB begins at the earliest one year after the death. Any claim not asserted in court within four years after the death of the testator risks being time-barred.

A legacy of care (Pflegevermächtnis) under §§ 677 et seq. ABGB is not a gift in the legal sense. Accordingly, the gift recipient liability rules of §§ 789 et seq. ABGB do not apply by analogy to the beneficiary of a statutory legacy of care. Where the estate is insufficient to cover compulsory portions, a person entitled to a compulsory portion cannot bring a claim under §§ 789 et seq. ABGB against the recipient of a legacy of care. The legislature has provided a separate liability regime for the legacy of care in § 684 ABGB (OGH, 20 January 2026, 2 Ob 182/25s).

Alternative Claims and Enrichment

If the specific requirements of § 677 ABGB are not met (e.g., care was provided outside the three-year window), enrichment claims (Bereicherungsansprüche) analogous to § 1435 ABGB may be possible (OGH 2 Ob 217/22h). This requires:

  • That the services were provided in the recognizable expectation of a counter-performance (e.g., a testamentary disposition).
  • That this expectation was disappointed.

Care services provided solely out of family affection or moral obligation without such expectation do not justify an enrichment claim. Furthermore, “agency without authority” (Geschäftsführung ohne Auftrag; § 1037 ABGB) is excluded if the deceased accepted the services with their consent.

For more information on complex legal matters, please refer to our Legal Glossary.