Pflichtteilsrecht

Persons entitled to a compulsory portion are mandatorily entitled to a quota-based minimum share of the estate. Only the descendants (children and children’s children) as well as the spouse (or registered partner) of the deceased are entitled to a compulsory portion (§ 757 ABGB; the entitlement of ancestors [parents, grandparents] to a compulsory portion has thus been eliminated).

As a compulsory share, each child and the spouse (or registered partner) is entitled to half of what he or she would have received according to the legal succession (§ 759 ABGB).

Example:

Therefore, if a married deceased has, for example, three children, the spouse is entitled to a compulsory share amounting to one sixth, each child to one ninth.

The claim to the compulsory portion is to be paid in money, whereby it can also be covered by a donation on death or a gift inter vivos (§ 761 ABGB). Gifts or donations are also suitable for covering the compulsory portion if they should have conditions or encumbrances attached to them (up to now these had to be freely disposable), which prevent the realisation of the donated property. However, this would have to be taken into account in a reducing manner when valuing the donation or gift (§ 762 ABGB). If the compulsory portion is not sufficiently covered by gifts on death or by gifts during the lifetime of the deceased, the beneficiary of the compulsory portion has the right to claim the compulsory portion itself or its supplement (§ 763 ABGB).

Although the claim to the compulsory portion arises upon the death of the deceased, it can only be claimed one year after the death of the deceased (§ 765 ABGB). By order of the deceased or at the request of the debtor of the compulsory portion, the compulsory portion may also be deferred for a period of five years or payment in instalments may be ordered within this period. A court extension to a maximum of ten years is possible in special cases (§§ 766 f ABGB).

Practice Tip:

The possibility of deferral enables, on the one hand, the protection of the economic existence of the debtor of the compulsory portion (for example, if the debtor is dependent on the dwelling located in the estate) and, on the other hand, the preservation of enterprises (for example, if the enterprise represents the economic basis of life) (RV 668 BlgNR 25. GP 27f).

At the request of a beneficiary of a compulsory portion or an heir, certain gifts made by the deceased (a distinction is made between gifts to persons not entitled to a compulsory portion and gifts to beneficiaries of a compulsory portion, §§ 782 f ABGB) are to be added to the pure estate when calculating the compulsory portion. This is to prevent the deceased from giving away his assets during his lifetime at the expense of the beneficiaries of the compulsory portion. A legatee can also demand addition and crediting insofar as he or she has to contribute to the fulfilment of the compulsory portion or suffers a proportionate deduction (§ 783 ABGB). The circle of persons who can demand an addition or crediting has been expanded by case law (OGH 2 Ob 100/23d).

With regard to gifts to be added, the beneficiary of the compulsory portion has a right to information against the estate, the heirs and the gift recipient (§ 786 ABGB).

The addition and crediting of a gift is carried out in such a way that the gift is mathematically added to the estate and the compulsory portions are to be determined from the thereby increased estate. However, the gift made to the donee is to be deducted from the increased compulsory portion of the donee, insofar as it is to be offset against his compulsory portion (§ 787 ABGB).

The valuation of the gift is based on the time at which the gift was actually made, whereby the value determined in this way is then to be adjusted to the time of death according to a consumer price index published by Statistics Austria (§ 788 ABGB).

If the estate is not sufficient to cover the compulsory portions after the addition and crediting of gifts, the gift recipient (several gift recipients are proportionally liable according to the value of their gifts) is liable to the reduced beneficiary of the compulsory portion and the latter may demand payment of the shortfall. As a rule, the donee is only liable for the thing given. If the thing given or its value is no longer available or has decreased, the donee is liable with all his or her assets if he or she has dishonestly allowed this loss of assets (§§ 789 f ABGB).

The compulsory portion may be withdrawn from a person entitled to the compulsory portion (disinheritance, §§ 770 f ABGB) if he or she has committed a judicially punishable act against the deceased, which can only be committed intentionally and is punishable by more than one year’s imprisonment, if he or she has committed a judicially punishable act against the spouse, registered partner, partner (Lebensgefährte) or relative in a direct line, the siblings of the deceased and their children, spouses, registered partners or partner (Lebensgefährte)s as well as the stepchildren of the deceased, which can only be committed intentionally and is punishable by more than one year’s imprisonment, if they intentionally frustrated or attempted to frustrate the realisation of the true last will and testament of the deceased, if they caused the deceased severe mental suffering in a reprehensible manner, if they otherwise grossly neglected their family law obligations towards the deceased or if they have been sentenced to life imprisonment or a twenty-year prison sentence for one or more criminal acts committed intentionally. Furthermore, under certain conditions, the deprivation of the compulsory portion is also possible in the case of culpable and profligate beneficiaries of the compulsory portion.

If the deceased and the beneficiary of the compulsory portion did not have a close relationship at any time or at least for a longer period of time before the death of the testator, as it usually exists in the family between relatives, the deceased may reduce the compulsory portion to half (unless the deceased avoided exercising the right to personal intercourse with the beneficiary of the compulsory portion for no reason or gave justified cause for the lack of contact) (reduction of the compulsory portion, § 776 ABGB).

Practice Tip:

In deviation from the previous legal situation, a lack of a close relationship over a longer period of time before death (at least 20 years) is sufficient (as of 1 January 2017) for a reduction of the compulsory portion (RV 668 BlgNR 25. GP 31).