OGH: Do Crimes within the Family Disqualify from Inheriting?

May 24, 2024 Benn-Ibler Rechtsanwälte

In the present case, the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) dealt with Section 166 of the Austrian Criminal Code (Strafgesetzbuch, hereinafter StGB) and Section 539 of the Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch, hereinafter ABGB) within the scope of the Inheritance Law Amendment Act 2015 (Erbrechtsänderungsgesetz 2015, hereinafter ErbRÄG 2015).

The case arose out of an action brought by the deceased’s partner in respect of her suspended inheritance. The defendants argued that the plaintiff was unworthy of her inheritance because of a serious property offence committed against the estate.

Since the plaintiff was legally not worthy of the inheritance, her claim to the inheritance was rejected by the lower courts. The reason given was that in the case of a criminal offence against the estate, the privilege of Section 166 of the StGB could not be invoked.

The OGH, however, reversed the decision and upheld the claim, as according to Section 539 of the ABGB, in the version of the ErbRÄG 2015, the privilege of Section 166 of the StGB must also be considered in case of criminal offences against the estate.

Disqualification from inheritance under Section 539 of the ABGB refers exclusively to criminal offences against the deceased or the estate if these can only be committed intentionally and are punishable by more than one year’s imprisonment. Legislators have therefore linked a civil law consequence with a certain minimum sentence. Under Section 166 of the StGB, the threat of punishment for various property offences to the detriment of close relatives is lower than the minimum threat of punishment under Section 539 of the ABGB. In contrast to offences against the testator himself, case law does not apply the privileged treatment of Section 166 of the StGB to offences against the estate.

This means that a property offence against testators themself would not lead to disinheritance, but a property offence against the estate would. The result is an extraordinary and constitutionally dubious contradiction of justice.

To resolve the conflict, the OGH came to the conclusion that Section 539 of the AbGB should be reduced to the effect that criminal acts against the estate only disqualify an heir if, under consideration of Section 166 of the StGB, the heir is prejudiced by such acts.

OGH 2 Ob 200/23k (20 February 2024)