In practice, the legal succession (§§ 727 ff ABGB) is most frequently applied. Legal succession applies if the deceased did not conclude a contract of inheritance, did not make a will for the entire estate or the appointed heirs do not obtain the inheritance.
Austrian inheritance law follows the so-called parentel system (§§ 731 ff ABGB) for legal succession. This distinguishes between different lines.
The first line is formed by the descendants. A distinction between marital and extramarital descendants no longer exists in Austrian inheritance law in this respect. The first line therefore consists of the children of the deceased and their descendants (§ 731 para 1 ABGB; further legal explanations on the first line can be found under §§ 732 ff ABGB).
The second line is composed of the parents of the deceased and their descendants (§ 731 para 2 ABGB; further legal explanations on the second line can be found under §§ 735 ff ABGB).
The third line is represented by the grandparents of the deceased and their descendants (§ 731 para 3 ABGB; further legal explanations on the third line can be found under §§ 738 ff ABGB).
Finally, the fourth line is formed by the great-grandparents of the deceased. Here, however, there is the peculiarity that only the great-grandparents still alive at the time of the inheritance are taken into account, but not their descendants (§ 731 para 4 ABGB; further legal explanations on the fourth line can be found under §§ 741 ABGB).
If children of a deceased person are predeceased, they shall be represented by their respective descendants in equal shares. This right of representation or entry applies to lines 1, 2 and 3. It always goes “downwards” (i.e. in favour of descendants, but not ancestors).
Example
An (unmarried) deceased has two sons (son 1 and son 2) and a daughter. Son 1 is alive and has no descendants. Son 2 is predeceased and leaves the grandchildren EK 1 and EK 2. The daughter is alive and has two children (EK 3 and EK 4).
According to the legal succession, son 1 and daughter each receive one third. The predeceased son 2 is represented by his children EK 1 and EK 2. These therefore share his third and each receive one sixth. The daughter’s children (EK 3 and EK 4) are not taken into account during the daughter’s lifetime.
In addition to children of the deceased and their descendants (first line), the spouse (or registered partner) married to the deceased in an ongoing marriage receives a share of one third of the inheritance. There is no difference between spouses and registered partners. In addition to the parents of the deceased, the spouse (or registered partner) receives two thirds. In other cases, the spouse (or registered partner) is the legal heir in full and displaces siblings and grandparents of the childless and parentless deceased (RV 668 BlgNR 25.GP 21). In the event that a parent has predeceased the spouse (or registered partner) also receives his or her share (§ 744 ABGB).
Example
In the example, the deceased was still married to the spouse at the time of death. The deceased has a daughter who in turn has two children (i.e. grandchildren from the deceased’s point of view). The spouse inherits one third in addition to the child. The spouse therefore receives one third, the remaining two thirds go to the daughter.
Example
In the example, the descendants are predeceased and in turn have no descendants. The spouse therefore receives two thirds, the parents of the deceased one third. If the parents of the deceased are already deceased, their third does not go to the siblings of the deceased, but entirely to the spouse.
Example
In the example, the deceased was still married to the spouse at the time of death. The spouse therefore receives one third. The remaining two-thirds are divided equally between the three tribes. Son 1 and the daughter therefore each receive two ninths. The two ninths of the predeceased son 2 are divided equally between EK 1 and EK 2 (i.e. with one ninth each).
The right of inheritance of the spouse (or registered partner) only exists if the marriage (or the registered partnership) is upright at the time of death. A divorced spouse has no right of inheritance after the deceased. Depending on the settlement of the divorce consequences, however, a maintenance claim in favour of the divorced spouse (or registered partner) may continue to exist against the heirs.
The spouse or registered partner is entitled to the right to continue to live in the matrimonial or partnership home and the movable property belonging to the matrimonial or partnership household as a statutory advance bequest, insofar as it is necessary for its continuation in accordance with the previous living conditions (§ 745 para 1 ABGB).
In addition, the spouse or registered partner has a claim to maintenance against the estate or the heirs up to the value of the estate (according to the principles of § 94 ABGB or § 12 EPG), as long as he or she does not enter into a marriage or registered partnership again. However, everything that the spouse or registered partner receives after the deceased by way of a contractual or testamentary donation, as a legal share of the inheritance, as a compulsory share or by way of a benefit under public or private law, as well as the spouse’s or registered partner’s own assets and earnings from an occupation actually carried out by him or her or from such an occupation as may be expected of him or her under the circumstances, shall be offset against this claim. However, this maintenance claim is not to be assessed in the same amount as the original claim against the deceased, but taking into account reasonable needs and the powers of the estate. Section 233 ABGB provides a comparable regulation for the maintenance claim of children.