Austrian OGH Affirms Indivisibility of Statutory Minimum Share

Jul 11, 2025 Benn-Ibler Rechtsanwälte

In cases where a minimum share related to residential property is to be allocated among more than two individuals, the probate court is required to offer both the minimum share and the corresponding residential property at a public auction. However, conducting an auction should be considered only as a measure of last resort.

The testator left his condominium to his wife

The deceased’s will left his condominium to his wife. His widow, son, and daughter each claimed one-third of the estate under statutory succession. The daughter demanded a compulsory portion larger than her share and refused to approve the confirmation needed for the widow to be registered as the condominium owner in the land register.

The lower court ordered an equal division of the estate among legal heirs, a decision affirmed by the appeal court. The Austrian Supreme Court (Oberster Gerichtshof, OGH) issued the following clarification:

In the case at hand, the decedent had explicitly arranged for his apartment to be bequeathed to his wife. This bequest creates a contractual entitlement for the transfer of ownership. The bequest indicates that the apartment is no longer part of the estate. Consequently, the probate court lacks jurisdiction to adjudicate the claim derived from the bequest, precluding the transfer of ownership to the widow during the probate proceedings, except by mutual agreement.

Pursuing an auction should be considered only as a final option

The wishes outlined in the deceased’s will are considered during probate proceedings. Before proceeding, alternatives such as establishing a partnership or filing a claim for partition of the estate may be evaluated.

In the continued proceedings, the court of first instance will begin by seeking an amicable resolution. If an agreement is not achieved, the widow may pursue the fulfillment of the intended legacy through a court-established deadline for filing a lawsuit.

OGH 2 Ob 209/24k (29 April 2025)