OGH: No Representation of Spouse Unworthy to Inherit

Jan 19, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled: Section 542 of the Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch, hereinafter ABGB) does not provide for the representation of an unworthy spouse.

The deceased had left behind his wife and five children, two from his current marriage and three from a previous one. All of these individuals filed declarations of inheritance: The wife for one third pursuant to Section 744 ABGB, the joint children for two fifteenths each, and the children from the first marriage for one fifth each. The children were of the opinion that the current wife was unworthy of the inheritance because she had been the cause of severe mental distress to the deceased over a period of several years. They also argued that since there was no representation of the spouse under Section 542 of the ABGB, the portion thus released should go to all the children in equal shares.

On appeal, the OGH dealt in depth with the interpretation of Section 542 ABGB and agreed with the prevailing view in legal literature as follows:

542 ABGB is to be understood against the background of the system of representation provided for in statutory succession and is not intended to lead to an extension of the group of persons entitled to inherit under the law or to an extension of the right of succession. The preceding provisions had assumed the prior death of the spouse who was not entitled to inherit, which made it clear that earlier lawmakers did not intend to introduce the representation of the spouse who was not entitled to inherit by their descendants, which is not otherwise provided for in the Act. Nothing else can apply in the context of Section 542 ABGB, since the predeceasing of a legal heir (but not the spouse) according to the general rules would only lead to representation by the descendants within the per stirpes rule.

The spouse not entitled to inherit is therefore not represented.

OGH 2 Ob 169/23a (25 October 2023)