Art Collection and Pre-Death Bequests: Legal Considerations

Sept 5, 2025 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has provided clarification regarding the criteria for determining whether works of art are subject to allocation under the legal advance bequest.

In the case at hand, the plaintiff was the widow of the deceased, with whom she had shared a condominium until his passing. The deceased was known for his involvement in Austrian art collecting. He had engaged extensively in acquiring artworks, motivated by personal interest as well as the intention to increase their value and reinvest. Proceeds from transactions were directed towards further expanding the collection.

The extensive art collection was exhibited throughout the couple’s residence and frequently showcased to discerning guests during organized vernissages.

OGH denies plaintiff’s claim to recover artworks

The plaintiff requested these art objects as a statutory advance legacy under Section 745 (1) of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch, hereinafter ABGB).

The OGH rejected the request and justified its decision as follows:

The advance legacy, as defined in Section 745 (1) of the ABGB, is intended to ensure that the surviving spouse is able to maintain their customary standard of living, specifically by permitting continued use of household items with which they are acquainted.

Assets that are primarily used in the testator's professional practice shall not be included in advance bequests, irrespective of their physical presence within the marital residence.

Works of art may, in principle, be subject to Section 745(1) of the ABGB if they are used to decorate the marital residence—such as when displayed or hung—and thereby establish a connection to the shared household. Nevertheless, consistent with precedent, this provision does not apply where the primary purpose of the works is collection or investment, and their decorative function is merely incidental.

OGH 2 Ob 38/25i (29 July 2025)