What does the spouse inherit in Austria?
Spouses, unlike cohabiting partners, have a fixed place in Austrian inheritance law. They are both legal heirs and entitled to a compulsory portion. The law assumes that one wants to leave a part of one’s assets to one’s spouse after death.
In order for the spouse to inherit in Austria, the marriage must be upright, i.e. still exist at the time of death.
How much does the spouse inherit in Austria?
How much does the spouse inherit in Austria?
The spouse’s share of the inheritance always depends on who else inherits in addition to the spouse and to which group the remaining heirs belong.
In addition to the descendants (children and grandchildren) of the deceased, in Austria, the spouse inherits 1/3 of the estate.
If the spouse inherits alongside the parents of the deceased (his or her parents-in-law), the spouse inherits 2/3 in Austria. If one parent of the deceased is predeceased, the spouse also receives his or her share. The share of the inheritance of a pre-deceased parent is thus not due to the other parent of the deceased nor to the siblings of the deceased if there is a spouse. The spouse thus prevents his brother-in-law and sister-in-law from inheriting under Austrian laws.
Apart from all other groups, the spouse inherits everything in Austria. He therefore always inherits everything if there are no descendants and both parents of the deceased have already predeceased.
- Example
Bianca is married and has two children. If she dies, both the spouse (in German: “Ehegatte”) and the children (in German: “Kind”) get 1/3 each.
Muriel lives in a registered partnership (in German: “eingetragene Partnerschaft”) and has no children. Her partner has a child from another relationship. Muriel’s mother is still alive, her father is deceased. Muriel has a brother. After Muriel’s death, her mother (in German: “Mutter”) gets 1/6 and her partner gets 5/6. The partner’s child is not a descendant of Muriel if she has not adopted him. Muriel’s brother inherits nothing, the father’s share goes to her partner.
Tom is married, he has no children and both of his parents are deceased. Upon his death, his wife (in German: “Ehefrau”) inherits everything, regardless of whether Tom has any living siblings or not.
In Austria, can the registered partner also inherit?
In Austria, can the registered partner also inherit?
Yes, registered partners (in German: “eingetragene Partner”) are equal to spouses under Austrian inheritance law. So, a registered partner inherits as a spouse would inherit in Austria.
Therefore, when this article refers to spouses and marriage, it also refers to registered partners and registered partnerships as stipulated under Austrian laws. This does not imply simple partnerships (life partners without any registered partnership).
Does it matter whether the marriage is between same-sex or opposite-sex partners?
Does it matter whether the marriage is between same-sex or opposite-sex partners?
No, marriage is marriage. The sex of the spouses has no influence on inheritance law. The same applies to registered partnerships; here, too, the sex of the partners does not play any role. So, any spouse can inherit in Austria, regardless of his/her sex.
Can I claim spousal support from my spouse's heirs?
Can I claim spousal support from my spouse's heirs?
Yes, as long as you do not enter into a new marriage, you are entitled to as much spousal maintenance as you received from your spouse during the marriage. However, everything you have received through the death of your spouse will count against your claim (what you have inherited for example). You must also take into account widow’s or widower’s pensions and your own assets and income. Maintenance against heirs is therefore only subsidiary.
Spousal maintenance should not be confused with the maintenance due after a divorce. In this case, the obligation to pay also passes to the heirs of the former spouse.
However, in both cases, the heirs are only liable up to the amount of the inheritance.
May I stay in the matrimonial home?
May I stay in the matrimonial home?
Yes, as a spouse, under Austrian inheritance laws, you are entitled to the so-called statutory advance bequest (in German: “gesetzliches Vorausvermächtnis”). This comes to you in addition to your inheritance portion and includes the belongings belonging to the household as well as the right to continue living in the marital home. This right is intended to protect you from suddenly having to move or even becoming homeless and losing not only your spouse but also your entire living environment. In addition, the regulation is a practical solution, since especially with household items it is not always possible to trace whether they belong to your spouse, to you or to both of you.
Through the advance bequest you are entitled to a permanent right of residence in the matrimonial home. The right of residence also includes, for example, the garden, the cellar compartment and the garage if these were previously used by you and your spouse. If you have only lived in part of a house, you are only entitled to the right of residence for this part. There is no right of residence in holiday homes. If you are entitled to the right of residence, you do not have to pay for the use of the flat, but you do have to pay for the operating costs.
In addition to the right of residence, you acquire ownership of all movable property that belongs to the household and is connected with the running of the household. This includes furniture, crockery, hoovers, pictures, carpets and also pets. Items acquired as an investment of value are not included.
- Example
The late Michelle set up a large specialist library in her study at home, which she only used for professional purposes. Her husband has never opened the books. The library is not part of the advance bequest.
A painting that the spouses bought from an aspiring artist only as an investment and that therefore does not serve decorative purposes is not part of the advance bequest either.
The advance bequest is particularly important in Austria if a spouse does not inherit the flat together with the household utensils anyway, or can enter into the tenancy agreement, for example. In principle, in Austria, a spouse will receive the advance bequest in addition to his/her share of the inheritance. If you (as a spouse eliged to inherit under Austrian law) are a co-heir, however, you must also share it proportionately. In addition, you must credit it against your compulsory portion (more on the compulsory portion can be found here).
- Example
Daniel dies and leaves behind two children and a wife. The value of his estate is EUR 350,000. The part of the estate that represents the advance bequest (i.e. the household effects and the right of residence) has a value of EUR 50,000. According to the statutory law of succession (intestate succession under Austrian laws), the children and the wife are each entitled to 1/3 of the estate. Since the wife receives the advance bequest in addition to her share of the inheritance, it must be deducted from the estate in a first step. The remainder, EUR 300,000, is then divided among the heirs. Therefore, the children both receive EUR 100,000 and the spouse receives EUR 150,000.
Judith’s estate amounts to EUR 240,000. The advance bequest has a value of EUR 60,000. Judith has given everything to her two children in a will, her spouse Sven only receives the compulsory portion. Sven’s compulsory share is 1/6, which would be EUR 40,000. Since Sven receives the advance bequest, his compulsory share is already covered. He does not get anything more.
You are only entitled to the advance bequest vis-à-vis the heirs. If, on the other hand, your deceased spouse has given the flat as a donation on death, you have no right of residence. This is because the person receiving the donaton on death (gift) is not an heir.
The right of residence from the advance bequest ends with the death of the second spouse. Whether it also expires if the surviving spouse remarries is still unclear.
Do my stepchildren inherit in Austria if my spouse has died before me?
Do my stepchildren inherit in Austria if my spouse has died before me?
No.
If you have not adopted your spouse’s children, they do not appear in your legal succession. Even if your spouse has died before you, Austrian inheritance law does not allow his or her children to enter into his or her inheritance position.
- Example
Gabriel is married to Ilvy. Gabriel already has a daughter from his first marriage (Ilvy’s stepdaughter). Together with Ilvy, Gabriel has a son. Gabriel dies, and some time later Ilvy also dies. The estate after Ilvy is divided according to intestate succession. If Gabriel were still alive, he would – as a spouse – inherit 1/3 under Austrian intestate succession. However, his daughter (= stepdaughter of the deceased) does not receive this third, which is why Ilvy’s son inherits everything.
- Practical tipp
In Austria, if you want your stepchildren to inherit something from you in case your spouse has died before you, you must specify this in a will.
Under Austrian laws of succession, what happens in the event of a divorce?
Under Austrian laws of succesion, what happens in the event of a divorce?
After a divorce which has become legally binding, there is no longer a statutory right of inheritance for the divorced spouses, nor are they entitled to an advance bequest. So, in Austria, the divorced spouse does not inherit anything under intestate succession.
Conversely, this means that the statutory right of inheritance continues to exist during pending divorce proceedings. However, there is an exception if the (still) spouses have concluded an agreement on the division of the marital property. In case of doubt, this agreement also applies in the event of the death of one spouse.
- Practical tip
If you do not want an agreement on the division of the marital property to apply already during pending divorce proceedings in the event of the death of one spouse, you must agree on this. Then the legal succession will continue to apply.
A divorce not only affects the statutory right of inheritance, but also wills. They are considered revoked upon divorce if they favour the former spouse and were made before the divorce. However, the revocation only affects the parts of the will in which the ex-spouse appears, all other dispositions remain in force, if possible. So, in Austria, a divorced spouse usually does not inherit anything under testamentory succession either.
However, the maker of the will can expressly state the opposite, in which case a will for the ex-spouse is valid even after a divorce. This will must be indicated in the testament, otherwise it is not respectable.
However, the spouse retains the rights under an inheritance contract even after a divorce if the marriage was divorced due to the sole or predominant fault of the other spouse.
- Example
Lars tells his friends that he loves his wife so much that he wants to leave everything to her, even if she separates from him. However, Lars’ will does not say anything about this, it only says that “my wonderful wife should inherit everything”. If there really is a divorce and Lars dies afterwards, his wife inherits nothing. In the will, his respective will was not indicated.
Constantin has already made a will in which he names his wife as his heir. He now wants to make sure that she remains heiress even in the event of a divorce. In order for him to effectively add to this, he must again do so in the form of a testamentary disposition.
In contrast to the statutory right of inheritance, which in principle continues to exist during pending divorce proceedings, wills are considered revoked in case of doubt as soon as divorce proceedings are initiated. Who filed for divorce is irrelevant. This can lead to the following legal consequence: If one spouse dies during pending divorce proceedings, the will favouring the other spouse is no longer valid in case of doubt, but he or she still inherits according to the legal succession.
What happens to our house?
What happens to our house?
If there are no separate provisions in a will or bequest, the house falls into the estate. It goes to the heirs. So, in Austria, if the spouse is the sole heir, the spouse will inherit the house.
If there are several heirs, they inherit the property jointly, in accordance with their respective inheritance quotas.
- Practical tip
If you want your spouse to inherit your house or your share in the joint house alone, you must make a testamentary disposition to that effect.
What happens to our apartment owned together in Austria?
What happens to our apartment owned together in Austria?
If you and your spouse are co-owners of an apartment (flat), you form an owner’s partnership. In Austrian inheritance law there are special regulations for the death of an owner-partner. These regulations take precedence over the “classical” law of succession.
In principle, the surviving spouse receives the half share of his or her deceased spouse, so that the entire flat then belongs to him or her alone.
However, the two spouses can conclude an agreement during their lifetime with a lawyer or notary in the event that one of them dies. This can determine who is to receive the half share of a deceased owner partner and thus become the new owner partner. If there is such an agreement, the surviving spouse no longer automatically gets the second half of the flat. These agreements are important because it can be determined that a third party can acquire the half share, while a provision in a testamentary disposition of the deceased that someone other than the surviving spouse gets the second half of the apartment would be null and void: The reason is that the surviving spouse should not be forced to accept any co-owner.
Regardless of whether the surviving spouse or a third party ultimately takes over the half share, a price must be paid into the estate. This transfer price amounts to half of the market value of the apartment. Since it is often not possible for the surviving owner-partner to “buy” half of the flat, the law provides for a privilege for certain persons who only have to pay a lower transfer price or even no transfer price at all. Privileged are owner-partners entitled to a compulsory portion who have an urgent need to live in the flat. This privilege also includes the surviving spouse because he or she is entitled to a compulsory portion. The urgent need for housing should always be carefully examined; legal advice is recommended here.
- Example
Greta and Paul are married and have bought an apartment together. Two years ago, Greta inherited a flat from her aunt. If the inherited flat meets contemporary standards, Greta does not have an urgent need to live in the matrimonial flat and therefore has to pay the transfer price when Paul dies. If, however, the inherited flat is in Bad Ischl and Greta has her habitual residence in Vienna, where she also works, the inherited flat cannot destroy the urgent need for housing.
Richard and his husband live in their joint apartment in Salzburg. When Richard’s husband dies, Richard has an urgent housing need for the joint flat, even though his elderly parents live in a suburb and he still has his children’s room there. This accommodation would not be equivalent.
How much the privileged owner-partner actually has to pay depends on various criteria. If there are other beneficiaries of the compulsory portion (such as children) in addition to the spouse, the price is a quarter of the value of the apartment. This is half of what a non-privileged transferee would have to pay. If there are no other beneficiaries of the compulsory portion, the spouse does not have to pay anything. The only exception to this is if the estate is overindebted. Even then, however, the spouse must pay a maximum of one quarter.
- Example
Jakob and his wife live together in their flat owned jointly. When Jakob’s wife dies, she leaves behind two children entitled to a compulsory portion. Jakob does not own another flat; the family flat satisfies his urgent need for housing. The flat has a market value of EUR 200,000, Jakob has to pay a quarter of the market value of the flat as a transfer price, i.e. EUR 50,000.
The surviving owner partner and the remaining heirs may also agree on a transfer price by mutual consent under certain conditions.
Furthermore, the probate court may defer the payment obligation or authorise payment of partial amounts. The obligation may be postponed for a maximum of 5 years if immediate payment would be unreasonable for the spouse.
The deceased may order in a testamentary disposition that the payment obligation be waived. A donation of the one-half share on death is also permissible.
If the surviving partner does not want to or cannot take over the other half share, he or she can renounce it. As a result, the entire flat is then auctioned off and the partner receives a corresponding part of the proceeds.
What happens to the marital home in Austria if my spouse was the sole owner?
What happens to the marital home in Austria if my spouse was the sole owner?
In this case, the matrimonial home falls into the estate and passes to the heirs. If the spouse is the sole heir, the spouse will inherit the Austrian matrimonial home.
If there are more than two heirs and the home is an apartment (condominium), it must be divided. An owner’s partnership can consist of a maximum of two persons. If the heirs cannot agree, the flat is auctioned off and the proceeds go to the estate.
If you do not become the sole owner of the flat, you are entitled to an unlimited right of residence in relation to the heirs within the framework of the advance bequest (see above). However, such a right of residence does not exist vis-à-vis the purchasers of the condominium from an auction.
We live in a rented flat in Austria, do I have to move out?
We live in a rented flat in Austria, do I have to move out?
If you are the sole main tenant of the matrimonial home and your spouse dies, the death has no effect on the tenancy. The tenancy agreement concluded between you and the landlord continues to exist as before.
Even if the flat was rented exclusively by your deceased spouse, i.e. you are not a party to the tenancy agreement, the death of the tenant does not end the tenancy agreement. If the tenancy is subject to the Austrian Tenancy Act, there is a special legal succession: As a spouse, you can enter into the tenancy pursuant to sec. 14 of the Tenancy Act (as can other close relatives) if you have an urgent residential need for the flat and lived in the same household as the deceased.
1. In order to have an urgent housing need, you must not have an equivalent flat at your disposal. This may require a detailed legal examination.
2. A prerequisite for the existence of a joint household is that it is permanent.
If both conditions are met, you as the surviving spouse automatically enter into the tenancy.
If not only you as the surviving spouse but also other relatives of your deceased spouse fulfil the prerequisites for entering into the tenancy agreement, you may also enter into the tenancy agreement jointly. This may apply in particular to your joint children. However, it is controversial and often unclear whether minor children really have their own urgent housing needs or have to be referred to their family law housing claims against their guardian(s).
- Example
The spouses Sebastian and Susanna occupy a rented flat for which Susanna signed the tenancy agreement at the time and became the tenant. When Susanna dies, Sebastian enters into the tenancy agreement because he has an urgent housing need and is entitled to enter as spouse. If Susanna’s mother has also lived in the flat and she has no other housing option, Susanna’s mother enters into the tenancy agreement together with Sebastian. They are then both the main tenants. Sebastian’s and Susanna’s son does not enter into the tenancy agreement if he only comes to visit from time to time at the weekend but otherwise lives in his own flat.
Persons entitled to enter may object within 14 days of the death of the main tenant, in which case the tenancy right falls into the estate and passes to the heirs. The tenancy right also always falls into the estate if there is no one who is entitled to enter or if sec. 14 of the Austrian Tenancy Act is not applicable. Important: In this case, the law grants both the landlord and the heirs (as tenants) a special right of termination. The landlord is therefore only bound to the tenancy after an entry according to sec. 14, but not after a transfer of the tenancy to the heirs.
What do I have to consider if we are both main tenants?
What do I have to consider if we are both main tenants?
If the tenancy agreement on the matrimonial home has been signed by both spouses, the same rules of special succession just described in the previous section are initially applicable with regard to the joint tenancy right of the deceased spouse:
The deceased spouse’s “free” part of the tenancy right is therefore not automatically transferred to the surviving spouse. If there is a close relative who lives in the joint household and has an urgent need for housing, this person – provided the Austrian Tenancy Act is applicable – is entitled to enter pursuant to sec. 14 and becomes the new co-tenant. The surviving spouse, however, cannot enter in this scenario, as she has no urgent housing need, but is a tenant of the flat herself.
If no one is entitled to enter or if sec. 14 is not applicable, the co-tenancy right falls to the estate. After the inheritance it passes to the heirs. In this case, however, the landlord has no right of termination because the surviving spouse also remains the tenant.
- Example
Laurenz is an adult and can provide for himself. However, he still lives in the flat shared by his parents, in which his mother and father are the main tenants. When Laurenz’s father dies, he enters into the tenancy agreement and becomes the main tenant together with his mother.
However, if Laurenz now decides to move out and take his own flat, he can object to the entry within 14 days and the co-tenancy falls to the estate after his father.
- Practical tip
If you and your spouse are joint tenants of the matrimonial home and you want to become the sole tenant after the death of your spouse, you must be the heir and the tenancy rights must have been assigned to you in the will.
If you are not an heir and the tenancy rights are only to be transferred to you in a legacy or by a gift on death, this is only valid if the landlord agrees!
I have cared for my spouse for years, do I inherit anything under Austrian law?
I have cared for my spouse for years, do I inherit anything under Austrian law?
This is possible, yes.
Under Austrian inheritance laws, spouses are entitled to the statutory care legacy if they have provided non-minor care for their spouse for at least 6 months in the last 3 years before the spouse’s death. This is not about providing professional nursing care, but about providing necessary care and assistance. The term is to be understood broadly and ranges from help with dressing, personal hygiene and cooking to cleaning the flat and doing the laundry. A not merely minor extent is reached at about 20 hours per month. The required 6 months within the last 3 years do not have to have been without interruption.
The amount of the care legacy depends on the nature, duration and extent of the care provided and the benefit accruing to the deceased spouse as a result. However, the value of the estate or any care allowance have no influence on the amount.
You are not entitled to the care legacy if you have already received payment for the care services.
The care legacy is a statutory legacy, your spouse does not have to order it in a testamentary disposition. You are directly entitled to a corresponding payment from the estate if the requirements are met. It is due to you in addition to your share of the inheritance and it will not be offset against your compulsory share.
Spouses in Austria: What is an inheritance contract?
Spouses in Austria: What is an inheritance contract?
An inheritance contract is a contract between two spouses or registered partners in which one designates the other as heir or both designate each other as heir. The special thing about it is that an inheritance contract – unlike a will – can no longer be revoked unilaterally. If spouses mutually designate each other as sole heirs in wills, this can therefore be revoked at any time. If they have done the same in an inheritance contract, not.
Since an inheritance contract interferes so strongly with testamentary freedom, it can only be concluded for ¾ of the estate.
In order for an inheritance contract to be valid, it must be drawn up in the form of a notarial deed on the one hand and fulfil the formal requirements of a will on the other.
In the case of divorce, there is a special rule for the inheritance contract: If the marriage is divorced without fault, with equal fault or by mutual consent, the inheritance contract expires. However, if the marriage was divorced due to predominant or sole fault, the blameless or less-faulty spouse retains all rights.
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