OGH on Compulsory Inheritance Reductions

Oct 27, 2023 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has once again stated that in Austrian inheritance law it is the legal relationship that counts. Both biological and non-blood children are equally entitled to an inheritance and thus to a compulsory portion of the estate. Also, not being related by blood constitutes no valid reason for avoiding contact with one’s children.

The applicant was born during her mother’s marriage to the deceased, but she is not his biological daughter. If a child is born during a valid marriage, the mother’s husband is considered the child’s legal father, even if they are not related by blood.

After the divorce, the deceased had no contact with his descendants. The plaintiff’s brother (already deceased) tried to ‘feel out’ whether the deceased wanted contact with his children. The deceased refused, stating that he had his own life to lead and that he did not need his children. As a result, the plaintiff did not make any further attempts at contact.

The testator appointed the defendant as sole heir and declared that there were no persons entitled to a compulsory portion. Following her father’s death, the plaintiff applied to be paid the compulsory portion to which she felt entitled.

The court of first instance upheld the claim. Legal paternity had never been revoked, entitling the plaintiff to a compulsory portion. The appellate court, on the other hand, found that the plaintiff’s claim to a compulsory portion was implicitly reduced to half by the omission of the daughter in the will.

The OGH upheld the decision of the court of first instance, adding the following:

A reduction of the compulsory portion is possible under Section 776(1) of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, hereinafter ABGB) if the claimant and the deceased did not have a close relationship over a long period of time (usually at least 20 years). However, according to Section 776(2) of the ABGB, the deceased is not entitled to a reducing the compulsory portion if the deceased avoided contact without reason. The deceased had refused any contact with the plaintiff because she was not his biological daughter. The lack of consanguinity does not justify the refusal of contact.

Since the deceased had refused contact without justification, the plaintiff is entitled to the full compulsory portion.

2 Ob 89/23m (25.07.2023)