OGH: Liability for Improper Estate Depletion

Oct 22, 2026 Benn-Ibler Rechtsanwälte

In a recent judgment, the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) considered the consequences that may arise where the assets of an estate are diminished through the admission of potentially unfounded claims. The Court held that, in certain circumstances, persons entitled to a compulsory share may have claims in damages.

The Dispute over the Estate Assets

In the case at hand, the deceased was survived by four children from two marriages and by his widow. A private foundation had previously undertaken, under a court settlement, to pay each child EUR 2.4 million. One condition was that claims held by the foundation and its subsidiary against the estate be pursued through the courts. The court-appointed administrator of the estate subsequently admitted claims totalling more than EUR 12 million. On that basis, the estate appeared to be insolvent by just under EUR 5 million. The subsidiary later acquired the children’s inheritance rights for EUR 4 million and became the heir to the estate.

Widow Claims EUR 8.5 Million

The widow then sought approximately EUR 8.5 million from the subsidiary in its capacity as heir. She contended that, considering lifetime gifts previously made by the deceased, she was entitled to a substantially larger compulsory share. She alleged that the admitted claims did not in fact exist and had been asserted merely as a sham in order to reduce the estate assets and, consequently, her compulsory share.

Austrian Supreme Court Clarifies Heirs’ Liability

The OGH first clarified that, for the purposes of an heir’s limited liability, the relevant value is, in principle, the value of the estate at the time of the grant of representation. A person entitled to a compulsory share must generally accept the effect of a court decision that has reduced the estate, even where that person was not a party to the proceedings concerned.

Potential Damages for Intentional Harm Contrary to Public Policy

The decisive issue, however, may be whether the subsidiary knowingly participated in diminishing the widow’s compulsory share by means of unfounded claims. Such intentional conduct could constitute intentional damage contrary to public policy under section 1295(2) of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch; ABGB), giving rise to a claim in damages. The court of first instance must now determine, in the resumed proceedings, whether the claims were in fact unfounded and whether the conduct was intentional.

OGH, 2 Ob 43/26a (15 September 2026)