Marriage After Testator’s Death Does Not Bar Inheritance

Oct 31, 2025 Benn-Ibler Rechtsanwälte

In case 2 Ob 71/25t, the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) examined if a marriage that took place after the testator’s death influences who is named as an heir under inheritance law.

The case at hand concerned an inheritance dispute in which the testator executed a will shortly before passing, referring to one of his daughters and her partner as ‘spouses’ and appointing them as joint heirs. The marriage between these individuals, however, did not occur until after the testator’s death. Within the estate was an agricultural enterprise, for which the designated heirs sought recognition as a ‘hereditary farm’, thereby affirming their status as heirs. The sister, who is entitled to a compulsory share, challenged this designation, arguing that the requirements set forth under the Austrian Farm Estate Succession Law (Anerbengesetz, hereinafter AnerbenG) had not been satisfied, as no marriage existed at the time of death.

Inheritance is determined by the date of the court’s ruling

The OGH rendered a partial affirmation of the appeal. While it confirmed the farm’s designation as a hereditary farm, the court overturned the AnerbenG ruling and remanded the matter to the lower court for further consideration. The determining criterion is whether all requirements for inheritance status are satisfied at the time the court issues its decision. Consequently, a marriage entered into after the testator’s death does not necessarily preclude the designation of an heir, provided that the marriage remains in effect until the final judicial determination and joint management of the farm is ensured.

Here, the court highlighted that the right of inheritance aims to maintain successful agricultural businesses and promote smooth farm succession. What matters most is not whether the deceased was married, but whether those eligible to inherit are capable and willing to keep the farm running as a sustainable business.

OGH 2 Ob 71/25t (26 June 2025)