OGH: Postponement of Compulsory Inheritance Portion

Feb 9, 2024 Benn-Ibler Rechtsanwälte

Testators may order the postponement of the right to their heirs’ compulsory inheritance portion for a maximum of five years after the testators’ death pursuant to Section 766(1) of the Austrian General Civil Code (Allgemeines bürgerliches Gesetzbuch, hereinafter ABGB).

The deceased, who died in 2018, had two daughters, the claimant and the defendant. In 2015, he transferred property to the defendant, which was set off against her compulsory inheritance portion. The defendant’s claim to a compulsory portion was thus settled. The compulsory portion of the plaintiff was reduced by half by the testator.

The following instructions were contained in the testator’s will: ‘As regards the compulsory portion, I further order that a period of five years be allowed for the payment of the same, i.e. that these become due to be paid at the earliest five years after my death.’

The plaintiff claimed payment of EUR 200,000 to supplement her compulsory portion. The defendant argued that the payment was not due because of the deferral ordered by the testator.

The court of first instance dismissed the claim for lack of maturity. The court of appeal ruled in favour of the plaintiff and allowed the appeal. The Austrian Supreme Court (Oberster Gerichtshof, OGH) upheld the decision of the court of appeal.

If a deferment has been ordered in accordance with Section 766(1) of the ABGB, the beneficiary of the compulsory portion can, as a rule, only claim the compulsory portion at the end of this deferment period.

Section 765 ABGB contains a similar provision. The beneficiary of the compulsory portion acquires the claim upon the death of the deceased. However, a monetary compulsory portion can only be claimed one year after death. According to case law, this is a ‘pure deferral’ which leads to a ‘block on enforcement’. Only the obligation to pay is postponed, not the initiation of compulsory portion proceedings.

The case law on the statutory deferral (Section 765(2) of the ABGB) is to be applied to deferrals ordered by a will (Section 766(2) of the ABGB), since both the wording and the purpose of the provisions are identical. As a result, Section 766(2) of the ABGB only standardises a bar to enforcement. The argument of lack of maturity is therefore not valid.

OGH 2 Ob 216/23p (21 November 2023)