Waiver of Inheritance and Unworthiness to Inherit
Under Austrian law, a potential heir’s right to an estate can be terminated in two ways: through a proactive waiver of inheritance during the testator’s lifetime or through the legal grounds of unworthiness to inherit.
Waiver of Inheritance
By means of a waiver of inheritance (Erbverzicht), a potential heir waives their future right of inheritance in an agreement with the deceased while the latter is still alive (§ 551 ABGB). For a waiver of inheritance to be legally binding, it strictly requires the form of a notarial act or a court protocol.
A waiver of inheritance is a contract with the testator, which may also be structured as a contract for the benefit of a third party. Whether the third party acquires an irrevocable right depends on the circumstances of the case and on how the agreement is to be interpreted. Where the testator expressly indicated to the waiving parties at the time the agreement was concluded that he could vary the waiver at any time, this precludes the agreement from being treated as an irrevocable contract for the benefit of the third party. In that event, the consensual cancellation of the waiver agreement does not require the third party’s consent, even where the cancellation withdraws advantages from that party. The cancellation is not an abuse of rights where the testator’s purpose was to ensure that his children could assert their compulsory portion claims without restriction — since Austrian law does not impose a marital duty to protect a spouse against the compulsory portion claims of the testator’s children (OGH 20 January 2026, 2 Ob 222/25y).
Scope and Strategic Planning
Unless otherwise agreed, a waiver of inheritance extends to both the compulsory portion and the descendants of the person waiving their rights. Such arrangements are highly practical for inter vivos dispositions, such as the timely transfer of a business or real estate. In most cases, the party waiving their rights is paid a compensation or abfindung (severance).
The revocation of a waiver agreement must be made in writing. These measures are essential tools to avoid inheritance disputes and ensure a secure transfer of family assets to the next generation.
Unworthiness to Inherit
Unworthiness to inherit (Erbunwürdigkeit) applies if a potential heir acts against the testator or the estate in a way that legally disqualifies them from receiving any assets (§§ 539 ff ABGB). This may occur if a potential heir:
- Exerts a negative influence on testamentary dispositions (e.g., forcing the deceased to draft a will or using deceit).
- Attempts to frustrate the true will of the deceased in any other way.
- Is guilty of a deliberate criminal offense against the deceased or the estate, punishable by more than one year’s imprisonment.
As a consequence of the unworthiness, the intestate succession may come into effect. However, the grounds for unworthiness are disregarded if the deceased has granted forgiveness, either explicitly or implicitly.
Absolute and Relative Unworthiness to Inherit (§§ 539 ff ABGB)
Austrian law distinguishes between absolute unworthiness to inherit (§§ 539 f ABGB) and the relative grounds set out in § 541 ABGB. The relative grounds — criminal offences against close relatives of the deceased, the infliction of severe emotional suffering, and the gross neglect of duties arising from the parent-child relationship — only exclude a person from the estate where the deceased was unable to disinherit that person because of testamentary incapacity, lack of knowledge or other reasons. They thus occupy a middle position between absolute unworthiness and disinheritance and operate as a fall-back provision (OGH 28 July 2026, 2 Ob 77/26a [para 37]).
Decision 2 Ob 77/26a has resolved the previously contested interpretation of this restriction. “Disinherit” in § 541 ABGB is to be understood in the broader sense and covers every means available to the deceased of preventing a particular person from becoming an heir by testamentary disposition, including the negative will in cases of intestate succession and the revocation of a disposition in favour of the unworthy person. “Lack of knowledge” and “other reasons”, by contrast, cover factual grounds only, above all the deceased’s ignorance of the facts constituting the ground of unworthiness. A mere mistake of law on the part of the deceased — for instance as to the need to take active steps — or simply forgetting to act does not suffice (OGH 28 July 2026, 2 Ob 77/26a [paras 31, 36, 40]).
In the case decided, a father who had paid virtually no maintenance over a period of ten years and had been convicted three times of breach of his maintenance obligation nevertheless inherited from his son, who died at the age of 26. The son had testamentary capacity and knew that succession can be regulated by will; he was merely unaware of the rules on intestate succession applying to unmarried and childless persons. That disregarding the mistake of law may produce a result the deceased would not have wanted must, in the view of the Supreme Court, yield to the legal certainty achieved by a narrow reading of the provision (OGH 28 July 2026, 2 Ob 77/26a [para 39]).
Practice note:
Anyone who wishes to prevent a particular statutory heir from inheriting must make an active testamentary disposition. Relative unworthiness to inherit cannot be relied upon, since it applies only where such a disposition was in fact impossible. Unmarried and childless persons are particularly affected: alongside a spouse, their parents are statutory heirs, even where those parents neglected their maintenance obligations for years. A negative will that expressly excludes the person concerned from the succession provides certainty.
Severe Emotional Suffering (§ 541 no. 2 ABGB)
A person is also unworthy to inherit if they have inflicted severe emotional suffering on the deceased in a reprehensible manner. The conduct need not be unlawful, but it must be immoral or blameworthy; it is reprehensible only where the deceased could reasonably expect their concerns and wishes to be respected. Where a relative arranges for a testator suffering from moderate dementia to be placed in a nursing home after the general practitioner and the hospital social services had recommended that step, the provision is not triggered even if the testator was unhappy in the home and wished to return (OGH 23 June 2026, 2 Ob 89/26s [paras 1 f]).
Enforcement and Limits
A person who is convinced that they are giving effect to the true will of the deceased does not frustrate that will within the meaning of § 540 ABGB (OGH 23 June 2026, 2 Ob 89/26s [para 4]). Where the estate has already been transferred to an apparent heir, the true heir may bring an action for the inheritance under § 823 ABGB; the fact that they took no part in the probate proceedings does not bar that action. The claim must as a rule be directed at the surrender of the inheritance or of the corresponding share. A claim for payment of a sum of money is admissible only exceptionally, namely where the estate consists solely of money or where all assets of the estate have already been converted into money (OGH 28 July 2026, 2 Ob 77/26a [paras 14, 42]).
For a detailed overview of legal terms in Austrian law, please refer to our glossary.