OGH: Abstract entitlement to the compulsory portion under Sec. 782 f. ABGB is assessed according to the time of gift and death

Jan 11, 2021 Benn-Ibler Rechtsanwälte

For the first time, the Austrian Supreme Court (Oberster Gerichtshof, OGH) commented on the question of what point in time is relevant for the assessment of the abstract right to a compulsory portion under Sec. 782 f of the General Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB) in accordance with the Act Amending the Law of Succession 2015 (Erbrechtsänderungsgesetz, ErbRÄG 2015).

In the present case, the later testator transferred his half share in a joint property to his then wife. Three years later the marriage was dissolved by mutual consent. The plaintiff, the son of the testator, requested from the defendant, the ex-wife, payment of his compulsory portion, including the gift.

According to Sec. 782 Para. 1 ABGB, gifts made in the two years prior to death to persons not entitled to a compulsory portion at the request of a person entitled to a compulsory portion must be added to the calculation of the estate. At the time of the gift, the defendant belonged to the group of persons entitled to the compulsory portion in accordance with Sec. 757 ABGB as the wife of the testator at that time, but due to the divorce three years later at the time of death of the testator, she no longer belonged to the group of persons entitled to the compulsory portion.

The question arises as to when the (abstract) entitlement to the compulsory portion of the donee's estate for the two-year limitation on the addition of the gift under Sec. 782 Para. 1 ABGB is to be taken into account. If only the time of the gift (point of view of the plaintiff) is taken into account, the gift would have to be added indefinitely according to Sec. 783 Para. 1 ABGB. If, on the other hand, it only depends on the time of death or both times together, the limitation according to Sec. 782 Para. 1 ABGB would be applicable.

According to the OGH it depends on both the time of gift and the time of death. The abstract entitlement to the compulsory portion must therefore exist at both times.

The OGH rejected the request of the plaintiff and the gift was not to be added, since the defendant at the time of death of the testator was no longer married to him and thus no longer entitled to a compulsory portion.

OGH 2 Ob 195/19v (06.08.2020)