Assertion of Compulsory Share Following Inheritance Waiver

Apr 30, 2026 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) was tasked with deciding if a waiver of inheritance and compulsory share could be revoked without the consent of the beneficiary wife, and how this would affect claims to a compulsory share.

Adjustment to the statutory share subsequent to gifts

The testator had transferred a business and multiple properties to his second wife during his lifetime. The children from his first marriage initially renounced their inheritance and statutory share claims. Subsequently, this waiver was revoked by mutual consent, resulting in the appointment of one daughter as the sole heir. The determining factor was that the original waiver had not been conclusively established as final.

Due to the estate’s insufficiency to satisfy the statutory share claims, the courts determined that the transfers made to the wife constituted gifts pertinent to the statutory share. Consequently, the wife was required to compensate for the shortfall to ensure that the beneficiaries received their statutory share as though the gifts had not occurred.

Revocation of waiver irrespective of third-party consent

The OGH established that an inheritance waiver constitutes a contractual arrangement between the testator and the individual relinquishing their rights, which may generally be revoked through mutual consent. Since the testator indicated at the time of execution that the contract could be modified at any point, no irrevocable agreement was created for the benefit of the spouse. Additionally, neither the intent nor the interpretation of the agreement substantiated any legitimate or definitive right for the spouse. Accordingly, her consent was not required.

The revocation was not deemed an abuse of rights, as a valid interest existed in reinstating the children’s entitlement to a compulsory share. No significant disparity between the parties' interests was identified. Additionally, a violation of marital obligations was dismissed, since statutory provisions do not require spouses to shield one another from their children's compulsory share claims.

OGH 2 Ob 222/25y (20 January 2026)