OGH on community property inter vivos
In the case of community property among living persons (inter vivos), one spouse has a legal claim to the registration of his or her co-ownership of the property of the other spouse covered by the community property. The termination of the community property by death does not lead to the loss of this claim.
In the present case, the deceased husband of the applicant was the sole or co-owner of several properties according to the land register. Probate proceedings were pending; in addition to the applicant, two children of the deceased were involved. The applicant requested that her ownership to these properties be recorded to the extent of half of the deceased husband's stake. She based her application on the marriage contract drawn up in the form of a notarial deed, in which the spouses had agreed on community property inter vivos.
The court of first instance dismissed the application, the court of appeal did not accept the applicant's appeal. The Austrian Supreme Court (Oberster Gerichtshof, OGH) considered the following:
According to the prevailing opinion, the marital community property inter vivos establishes simple co-ownership of the common property, but this is initially only obligatory. The mutual obligation to dispose of the common property only jointly is only given real effect by the recording in the land register.
In order to have real effect, the community property inter vivos must be made evident in the land register in such a way that the right of ownership is recorded for each spouse with the restriction that no party may unilaterally dispose of his or her ideal share during the duration of the community property.
The property ownership already existing during the lifetime is therefore not affected by the dissolution of the marriage contract by death, nor is the (obligatory) claim of one spouse to the transfer of the half-ownership of the property of the other.
The spouse who at the time failed to establish the land register situation corresponding to the marriage contract cannot derive any advantage from this if the marriage contract is subsequently dissolved; his or her obligation under the marriage contract to grant the property right of the other party in accordance with the contract is not extinguished by the fact that the contract is subsequently annulled. In the case of a community property inter vivos, one spouse has a legal claim to the registration of his or her co-ownership of the property of the other spouse covered by the community property. The cancellation of the community property by death does not lead to the loss of this entitlement.
Efficient Legal Information 
Legal Jobs 
Innovative LegalTech Solutions