Austrian OGH: Preliminary Ruling on Estate Asset Sales

Feb 19, 2026 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) was asked to clarify whether Austrian courts have international jurisdiction under Article 10(2) of the European Succession Regulation when a beneficiary of a compulsory portion sues the heir for payment of a sum of money derived from estate assets located in Austria, which were sold by the heir to a third party after the death of the testator.

In the case at hand, the decedent’s last habitual residence had been in Moldova, and their sole property in Austria—an apartment—was included in probate proceedings and subsequently sold. The plaintiff, as the decedent’s daughter, pursued payment of her compulsory share from the sole heir, invoking subsidiary jurisdiction pursuant to Article 10(2) of the European Succession Regulation on the basis that estate assets had been situated in Austria. Nonetheless, the lower courts dismissed the action for lack of jurisdiction, stating that Article 10(2) of the Regulation applies only to decisions relating to estate assets physically located within the Member State. A monetary claim alone does not fall within this criterion, particularly since the relevant assets were no longer present in Austria at the time the claim was submitted

The OGH has now affirmed that claims regarding compulsory portions are encompassed within the material scope of the European Succession Regulation. Nevertheless, the interpretation and application of Article 10(2) of the Regulation continue to present uncertainties.

A strict reading of the wording would mean that jurisdiction is restricted to cases directly involving rights to estate assets situated in Austria. This would exclude straightforward monetary claims against the heir.

Another perspective suggests that claims for compulsory portions may be considered payable if they come from estate assets in a Member State that have since been sold, aiming to prevent unfair differences between jurisdictions under the European Succession Regulation No 650/2012.

Since there was no clear interpretation, the OGH asked the Court of Justice of the European Union to decide if Article 10(2) of European Succession Regulation No 650/2012 also applies to payment claims when estate assets have been sold by an heir to a third party after the testator’s death. The appeal process was put on hold until the ECJ issued its preliminary decision.

OGH, 2 Ob 165/25s (20 January 2026)