Care Legacy: Austrian OGH Clarifies Meaning of ´Care`

Jun 6, 2025 Benn-Ibler Rechtsanwälte

According to Section 677 (1) of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch, hereinafter ABGB), a person close to a deceased individual, who has cared for the deceased to a not merely insignificant extent in the three years prior to their death is entitled to a statutory legacy in return, unless a benefit had been granted or remuneration agreed upon previously.

The testator’s estate, which was bequeathed to her daughter (the defendant), son, and grandson (the plaintiff) in equal shares, was passed on after her death in 2021. The testator had been in a nursing home from 2015 until her death. The defendant visited her about once a month and spoke with her on the phone daily. While the testator was in the nursing home, the defendant also arranged for her to receive psychological care, made all medical decisions on the testator’s behalf, and served as the contact person for the management and nursing staff.

The court of first instance denied the defendant's claim to a care legacy. This decision was confirmed by the court of appeal.

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) did not uphold the defendant’s appeal.

Care legacy despite nursing home care?

According to the established case law of the OGH, a claim under Section 677 ABGB is generally excluded during periods of hospital or residential care due to the lack of (objectively) necessary care services. However, a claim from a care legacy may be considered for periods of ‘external care’ insofar as other care services are performed for the benefit of the deceased during this time, which the deceased was prevented from performing solely due to need for care.

Simple visits and telephone calls with a person accommodated in a home are not covered by the concept of care under Section 677 of the ABGB.

Organisational services provided personally can fall under the concept of care if the person receiving care was prevented from performing them due to their need for care and the organisational services improved their ability to lead a self-determined, needs-oriented life.

Minimum threshold not exceeded

To be eligible for a care legacy, the total services provided by the caregiver must exceed the minimum threshold specified in Section 677 of the ABGB. According to the legislative materials and literature, the threshold is considered exceeded if an average of more than 20 hours per month is spent on care.

In this case, however, the organisational activities amounted to only 13 hours per month, thus not exceeding the minimum limit.

OGH 2 Ob 33/25d (29 April 2025)