Acceptance of Inheritance in the Absence of Legal Parentage

Oct 8, 2026 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has recently considered whether a statement of acceptance of inheritance should be rejected on procedural grounds or dismissed on its merits where the applicant asserted biological descent from the deceased but, owing to the subsisting legal paternity of another man, was not legally related to him.

In the case at hand the deceased had died intestate. Claiming to be a member of the second parentelic line, the applicant submitted a statement of acceptance of inheritance based on intestate succession. Although he was biologically descended from the deceased, the acknowledgement of paternity by another man meant that no corresponding legal relationship existed.

The lower courts rejected the statement of acceptance of inheritance on procedural grounds.

Intestate succession requires legal parentage

The OGH upheld the conclusion reached by the lower courts, while refining its reasoning as follows:

As a rule, the statutory right of inheritance is based on legally established parentage, not merely biological descent. The biological relationship alleged by the applicant was therefore incapable of constituting a valid legal basis for inheritance. A statement of acceptance of inheritance which, even on the facts pleaded by the applicant, cannot result in the estate being transferred to him is legally insufficient.

The decision is of particular significance for the relationship between a statement of acceptance of inheritance and proceedings to determine the right of inheritance under sections 160 et seq. of the Austrian Non-Contentious Proceedings Act (Außerstreitgesetz, hereinafter AußStrG). The OGH made clear that, under the AußStrG, a preliminary review of statements of acceptance of inheritance is both permissible and required.

Proceedings to determine the right of inheritance presuppose competing statements of acceptance of inheritance, each of which is at least legally sufficient. By contrast, a statement that is merely legally insufficient does not warrant the commencement of such proceedings.

No proceedings to determine the right of inheritance where the statement is legally insufficient

Section 160 of the AußStrG must be given a purposive, restrictive interpretation, such that only legally sufficient statements of acceptance of inheritance may trigger proceedings to determine the right of inheritance. Where the claimant has failed at the outset to establish a valid legal basis for inheritance as required by section 799 of the Austrian General Civil Code (Allgemeines bürgerliches Gesetzbuch; ABGB), the claimant is not to participate further in the probate proceedings.

Under the law as it stands, such a statement of acceptance of inheritance is not to be rejected on procedural grounds but dismissed on the merits for legal insufficiency. Accordingly, statements of acceptance of inheritance which, even on the applicant’s own case, are inherently incapable of resulting in the transfer of the estate must be dismissed without proceedings under sections 160 et seq. AußStrG.

2 Ob 98/26i (28 July 2026)