OGH: Inheritance Law: When Does a Domestic Partnership Legally End?

Nov 11, 2022 Benn-Ibler Rechtsanwälte

Any testamentary consideration of a partner is cancelled upon dissolution of a domestic partnership according to Section 725 (1) of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB). Now, the Austrian Supreme Court (Oberster Gerichtshof, OGH) clarified at which point in time a domestic partnership is be considered dissolved.

In the case at hand, the deceased had appointed the first applicant, who had been his partner, as his sole heir. However, his legal heirs invoked their statutory right to inheritance and argued that the domestic partnership between the two had factually been dissolved prior to the death of the deceased.

The personal situation of the first applicant and the deceased had been as follows: The first applicant had lived in Tyrol, the deceased had lived in Lower Austria. The couple visited each other at regular intervals for several weeks at a time, exchanged affections, and enjoyed a deep emotional bond. In 2012, the deceased underwent knee surgery. The first applicant initially planned to provide care for her partner but was overburdened by the task of providing nursing care and returned to Tyrol. She did not provide any financial contribution for his 24-hour nursing care. Until the first applicant suffered a stroke, the two partners spoke on the phone almost daily but only saw each other once again in 2018 on the occasion of the deceased's 80th birthday.

According to the Austrian Supreme Court, a domestic partnership requires emotional attachment as well as typical elements such as shared housing, finances, and sexual intimacy. A domestic partnership’s factual termination is a case-by-case matter. Thus, the absence of one the typical elements can be compensated for by the (continued) presence of the other characteristics. Also, it is important for what reason one of the elements has ceased to exist.

In the case at hand, none of the above three elements existed after the deceased’s surgery, which would not necessarily had to have been so (for health reasons). Frequent telephone calls and one visit after six years, however, do not constitute a domestic partnership, as otherwise the delineation between a friendship and a domestic partnership would become completely blurred.

OGH 2 Ob 97/22m (6 September 2022)