What does "disinherit the children" mean in Austria?
What does "disinherit the children" mean in Austria?
Can I disinherit my children in Austria?
In common Austrian parlance, “disinheritance” is often understood to mean the deletion from the will or – in relation to those entitled to inherit by law, such as the children – the drawing up of a will in which they are not considered: The child loses his or her legal right to inherit if one parent, for example, names his or her nieces as sole heirs, i.e. “disinherits” the child.
- Example
The already widowed father threatens his only daughter that he will “disinherit” her if she marries her fiancé.
What he means by this is that he will make a will and name his favourite football club as sole heir. The daughter would then only receive the compulsory portion. In this case, of course, that is still half of the estate.
Strictly speaking, what the father is threatening to do to his daughter in the example just given is not a disinheritance at all. The law understands “disinheritance” to mean something different, namely the withdrawal of the compulsory portion.
You can find explanations on the compulsory portion here. At this point it is sufficient to know the following:
- Every person can formulate his or her will as he or she wishes. This means that certain persons and even the children or the spouse can simply not be included in the will at all.
- However, the law on compulsory portions sets limits to this freedom: certain close relatives, namely descendants and spouse/registered partner, are entitled to a part of the estate even if they have been passed over in the will.
- Disinheriting in the legal sense now consists of depriving persons entitled to a compulsory portion even of this remaining part, i.e. destroying their right to a compulsory portion.
- And this in turn is only possible under certain conditions laid down in the law.
- Example
The mother wants to disinherit her son because he is not continuing the family business but is studying archaeology.
Can she only deprive him of his legal right of inheritance by drawing up a will and not mentioning her son in it at all, or is this reason sufficient to deprive him even of his compulsory portion?
The parents have fallen out with their first-born daughter Jasmin, there has been no contact with her for over 15 years. Since the parents have still not forgiven Jasmin, they want Jasmin to inherit as little as possible. How much is that?
When can I disinherit someone in Austria?
When can I disinherit someone in Austria?
Disinheritance in the non-technical sense, i.e. a withdrawal of the right to inherit so that only the compulsory portion remains, is always possible. There do not have to be any special reasons for this. It is sufficient to draw up a will.
However, certain relatives, the children and the spouse, are entitled to the compulsory portion. If one also wants to withdraw the compulsory portion, there must be a legal reason for disinheritance. Persons entitled to a compulsory portion can only be disinherited if at least one of the following reasons exists:
- They have committed a criminal act against the deceased or his or her close relatives which can only be committed intentionally and is punishable by more than one year’s imprisonment.
They have intentionally thwarted or attempted to thwart the realisation of the last will and testament.- They have caused the deceased severe mental suffering in a reprehensible manner.
- They have grossly neglected their family law obligations towards the deceased.
- They have been sentenced to life imprisonment or 20 years imprisonment for a criminal offence committed with intent.
- Practical tip
For the first reason (criminal offence against the testator or his or her relatives), it does not matter to what penalty the heir was actually sentenced. It only depends on what he could have been sentenced to. The decisive factor is therefore the range of punishment.
- Example
Serious fraud, killing of the testator or his wife, slander, neglect of the mentally ill testator, refusal of assistance in case of life-threatening illness, abandonment of the elderly parents, loneliness of the parents.
There is also disinheritance with good intentions, which is an additional ground for disinheritance. This is realised if the beneficiary of the compulsory portion is overindebted or lives a lavish lifestyle and there is therefore a risk that his children will no longer be able to benefit from his inheritance. The testator can then withdraw the compulsory portion, but only for the benefit of the children of the disinherited. The person entitled to the compulsory portion is thus simply “skipped over”.
In this case, the children of the disinherited must have been conceived or born at the time of the deceased’s death at the latest. If the beneficiary of the compulsory portion has no children, disinheritance in good faith is not possible. Whether the spouse can only be disinherited in good faith if his or her children are also the children of the deceased has not yet been clarified by case law.
- Example
Michael has such large debts that it is not foreseeable that he will ever be able to cover them again from his own earnings. However, since he has no children, he cannot be disinherited in good faith under Austrian law. If he has not established a reason for disinheritance (provided for by Austrian inheritance law, see above), he has a right to at least receive his compulsory portion.
Nicole loves luxury holidays, every year she flies twice to Bora-Bora. In other ways, too, she has been spending much more money than she has for years. She has already mortgaged her house and all her valuables and is on the verge of personal bankruptcy. There is no sign of a change in her consumer behaviour. Therefore her parents can disinherit her with good intentions under Austrian laws, her children will then receive her compulsory portion.
For a disinheritance of children (or any other relatives) to be effective under Austrian laws, not only must there be a permissible reason, but it must also be ordered in a will. The disinheritance can be either explicit or implicit (e.g. by passing over the beneficiary of the compulsory portion).
However, the reason for disinheritance (of children or any other relatives) under Austrian laws does not have to be explicitly stated; it is sufficient if it exists and is causal for the disinheritance.
- Practical tip
If there is a reason for disinheritance, not only the compulsory portion but also the spouse’s statutory advance legacy and the care legacy can be withdrawn. It is unclear whether there must also be a reason for disinheritance in the case of unmarried partners for the exclusion from the statutory advance legacy.
Under Austrian laws, who inherits instead of the disinherited?
Under Austrian laws, who inherits instead of the disinherited?
If the legally disinherited person is a descendant of the deceased, the children of the disinherited person are entitled to the compulsory portion under Austrian laws in the case of testamentary succession. They divide among themselves the compulsory portion that would have accrued to their parent without disinheritance.
If, on the other hand, a spouse (or registered partner) is disinherited in Austria, his/her children do not enter into his/her compulsory portion. If there is no one (i.e. no children or grandchildren etc.) who can enter into the compulsory portion instead of the disinherited spouse in Austria, the quotas of the remaining beneficiaries of the compulsory portion increase.
If there is intestate succession, the children (and other descendants) of the disinherited person become legal heirs under Austrian laws. They then receive not only the compulsory portion, but the share of the inheritance to which their disinherited parent would have been entitled. However, some legal questions are disputed in detail and have not yet been clarified by the courts. In Austria, it is therefore advisable not to limit oneself to a disinheritance (of children or the spouse) and not to regulate anything beyond that, but to carefully consider what should happen to the inheritance and make appropriate provisions in the will.
- Example
Susi’s mother legally disinherited her child Susi in her will (subject to Austrian law), who instead appointed her favourite niece as her heir. Due to her disinheritance, Susi’s child Tom receives the compulsory portion to which Susi would be entitled under Austrian laws, even though Susi is still alive.
Can I disinherit my children in Austria?
Can I disinherit my children in Austria?
Children are entitled to a compulsory portion. Withdrawal of the compulsory portion is only possible if there is a reason for disinheritance (see above). However, it is always possible to draw up a will in which the children are not named. In this case, of course, they still receive their compulsory portion.
Can I disinherit my parents in Austria?
Can I disinherit my parents in Austria?
Yes, this is possible without any problems. This is because parents are not entitled to a compulsory portion. And as they are not entitled to a compulsory portion in Austria, their children do not have to withdraw any compulsory portion from them by way of disinheriting them. Strictly speaking, there is therefore no “disinheritance” with respect to parents.
If one does not want to bequeath anything to one’s parents, one can do so in a will without there having to be any special reasons. As long as one has children or grandchildren, one’s parents will not inherit anything anyway, unless they have been provided for in a last will and testament.
Can I disinherit my spouse?
Can I disinherit my spouse?
In Austria, this is only possible if there are grounds for disinheritance. This is because under Austrian laws of succession, spouses are entitled to a compulsory portion.
Can I disinherit someone for gross ingratitude?
Can I disinherit someone for gross ingratitude?
No, gross ingratitude is not a ground for disinheritance.
However, if the beneficiary of the compulsory portion has caused the testator severe emotional suffering in a reprehensible manner or has grossly neglected his or her obligations under family law, there are indeed grounds for disinheritance.
What happens if I disinherit someone but there is no reason for disinheritance?
What happens if I disinherit someone but there is no reason for disinheritance?
Since it is not possible to withdraw the compulsory portion without there being a reason for disinheritance, in this case there is (merely) a reduction to the compulsory portion. If the conditions for a reduction of the compulsory portion are met, the compulsory portion is reduced (see below).
- Example
Konrad is “disinherited” by his parents because he is not studying law, but botany. Of course, this is not a real reason for disinheritance. Konrad’s parents can only deprive him of the right to inherit up to the compulsory portion, which he receives anyway.
I was disinherited, although the assumed reason for disinheritance does not exist.
I was disinherited, although the assumed reason for disinheritance does not exist.
If a disinheritance occurs without the existence of a reason for disinheritance, the disinherited person only receives his or her compulsory portion, but not any portion of the inheritance in excess of this.
The situation may be different if there was a mistake of fact, i.e. if the testator wrongly assumed that the heir had acted in a certain way which would have entitled him to disinheritance. If the testator is mistaken, there may be a contestation of mistake if the testator would have given more to the heir if he had not been mistaken.
Similarly, a contestation of mistake may arise if a child was omitted from the will and thus tacitly disinherited, but the testator did not know about the child.
On the other hand, a contestation of the will is not possible if the deceased only misjudged the disinherited person’s conduct in legal terms, i.e. considered it sufficient to bear a disinheritance, but this was not the case. For then it is clear that the disinherited person should be given as little as possible. And that is – in the absence of a ground for disinheritance – the compulsory portion.
An invalid disinheritance can be reinterpreted as a reduction of the compulsory portion if the requirements for this are met (see below) and the disinheritance is not based on a mistake.
- Example
Leni believes that her son has committed the offence of serious fraud against her, so she disinherits him. In reality, however, he has not done so at all. If Leni had allowed the legal succession to take place, if she had not been mistaken, her son can contest the will.
Can a disinheritance be revoked?
Can a disinheritance be revoked?
Yes, this is possible.
The revocation of a disinheritance must be done by a testamentary disposition. It can be made explicitly or implicitly.
The prerequisite for revoking a disinheritance, however, is testamentary capacity.
- Example
Ursula legally disinherited her spouse a few years ago. Now she has changed her mind and wants to revoke the disinheritance. For this purpose, she could make a new will and write in it that she revokes the disinheritance. Alternatively, she could make her spouse her heir in a new will. And finally, she could simply destroy the original will in which the disinheritance was ordered, in which case intestate succession would take effect.
Exceptionally, a disinheritance can also be revoked by pardon. However, this possibility is reserved for testators who are no longer capable of making a will. Otherwise, they would no longer have the possibility to revoke a disinheritance that has already been ordered. If a testator who is incapable of making a will indicates that he or she has forgiven the disinherited person, the disinheritance is deemed to be revoked. However, the testator’s behaviour must clearly show that he or she has forgiven.
Can the compulsory portion be reduced under Austrian law?
Can the compulsory portion be reduced under Austrian law?
Yes, this is possible under certain circumstances:
The compulsory portion can be reduced by half in a will if there was no close family relationship between the deceased and the person entitled to the compulsory portion. This can either be the case if the close relationship never existed or if it did not exist for a longer period of time before the death of the deceased.
Even if there is no close relationship, however, the compulsory portion cannot be reduced if the deceased broke off contact without reason or ignored the beneficiary of the compulsory portion or if the beneficiary of the compulsory portion had good reasons to avoid contact with the deceased. If the lack of relationship is therefore attributable to the deceased, he or she cannot invoke it and reduce the compulsory portion.
What is meant by a close family relationship?
What is meant by a close family relationship?
A close family relationship, the absence of which justifies a reduction of the compulsory portion, is understood to be a spiritual-emotional relationship that is typical among family members and that is based on personal contact. The relationship must exist over a certain period of time.
It always depends on the circumstances of the individual case, which can vary depending on age, profession, health and geographical distance.
- Example
Viktor visits his old father on his deathbed; before that they had had no contact with each other for 25 years. This brief contact does not constitute a close relationship.
For professional reasons, the spouses have not lived in the same flat for some time. Otherwise, however, their relationship has not changed; the spiritual and emotional bond remains as strong as ever. There is a close family relationship.
The relationship between the divorced father who does not live in the joint household and his child will usually be weaker than that with the mother in whose household the child lives. Nevertheless, a sufficiently intensive close relationship exists if the father visits regularly and takes an interest in the child’s development and well-being. Regular contacts every two to three months of the illegitimate father who lives in another city are also sufficient for a close family relationship.
It is not enough if one parent only pays maintenance but never has contact with the child or if there is no relationship apart from the exchange of Christmas and birthday cards.
Spouses who do not divorce only for religious reasons, but who have lived separate lives for decades, also do not have a family relationship of closeness.
The close relationship can either never have existed or have not existed for a longer period of time before the death of the deceased to justify a reduction in the compulsory portion. How long “a longer period” is depends on the individual case. A period of 10 to 20 years is usually considered sufficiently long to allow for the reduction of the compulsory portion.
How must the reduction of the compulsory portion be ordered under Austrian law?
How must the reduction of the compulsory portion be ordered under Austrian law?
It must be designated in the form of a will, otherwise it is invalid.
The testator must be capable of making a will.
An invalid disinheritance can be reinterpreted as a reduction of the compulsory portion if the requirements for this are met and the disinheritance is not based on a mistake.
What exactly happens in the case of a reduction in the compulsory portion?
What exactly happens in the case of a reduction in the compulsory portion?
The compulsory portion of the beneficiary of the compulsory portion is halved. The child or the spouse is only entitled to half of the compulsory portion to which he or she would otherwise be entitled.
However, the deceased may also stipulate in his or her will that the compulsory portion is to be reduced by less than half; half is only the limit.
If the compulsory portion of a descendant of the deceased has been reduced, this descendant’s children receive the second half of the compulsory portion. If he or she has no descendants, the free half falls proportionately to the other descendants of the deceased entitled to the compulsory portion. This increases their share of the compulsory portion. However, the spouse of the deceased does not benefit from this; his or her compulsory portion remains the same. Only if there are no other descendants of the deceased, the free part accrues to the spouse.
If, however, the compulsory portion of the spouse was reduced, the free portion does not accrue to his or her own descendants, nor does it accrue to the descendants of the deceased who are entitled to a compulsory portion.
In detail, the regulations as to who benefits from the free half compulsory portion have not yet been clarified since the reform of the Austrian law of succession in 2015.
- Practical tip
A reduction in the compulsory portion does not mean that the testator can now freely dispose of a larger portion of his or her assets!
Can the reduction of the compulsory portion be revoked?
Can the reduction of the compulsory portion be revoked?
Yes, this is possible.
Reductions of the compulsory portion can be revoked in the same way as disinheritances (see above). On the one hand, this can be done by revocation in the form of a will, by drawing up a new will or by destroying the will in which the reduction of the compulsory portion was ordered. Here, too, the testamentary capacity is always a prerequisite.
In addition, the reduction of the compulsory portion can be revoked by means of a pardon if the testator is no longer capable of making a will.
If the family relationship is (re)revived after a reduction of the compulsory portion has been ordered, this does not constitute a revocation. However, the central prerequisite for the reduction is then missing, i.e. it becomes ineffective.
In Austria, when is one unworthy of inheritance?
In Austria, when is one unworthy of inheritance?
Unworthiness to inherit, in Austria, is a penalty for serious misconduct on the part of an heir.
If the heir has committed an act that constitutes a ground of unworthiness to inherit, he or she does not deserve to inherit anything according to the legislator’s intentions. Under inheritance law, it is then assumed that he or she does not exist.
Absolute grounds for unworthiness to inherit make a person unworthy to inherit in any case. A potential heir cannot inherit if he or she has an absolute ground of unworthiness to inherit (unless he or she has been forgiven, see the next section). Absolute unworthiness to inherit exists
- in the case of criminal acts against the testator or his estate, if the act can only be committed with intent and is punishable by more than 1 year imprisonment, and
- in the case of intentional frustration of the realisation of the true last will and testament of the deceased or a corresponding attempt.
- Practical tip
Here, too, it is not the concrete sentence to which the heir was sentenced that is decisive, but whether the offence can be punished in the abstract with more than one year’s imprisonment.
- Example
The child kills his parents. The granddaughter embezzles or steals money from the estate or unlawfully withdraws money from the account after the death of the testator. The spouse forges the will of the wife. The child knows where the father keeps his will and destroys it after his death.
This does not, however, include acts by persons incapable of committing a crime, for example if the heir had a schizophrenic psychosis. Nor does it lead to unworthiness to inherit if the heir intended to realise the testator’s true will by thwarting the act. In practice, however, it will often be difficult to prove an intention to realise the testator’s true will.
Relative grounds for unworthiness to inherit, on the other hand, are “less serious”. They only make the deceased unworthy to inherit if he or she could no longer disinherit the wrongdoer, for example because he or she was no longer capable of making a will or did not know about the misconduct. In all other cases, disinheritance is required if the misconduct is also to have consequences under inheritance law. Relative grounds for disinheritance are
- committing intentional offences punishable by more than one year’s imprisonment against close relatives of the testator,
- the reprehensible infliction of severe mental suffering, and
- gross neglect of duties between parents and children.
- Example
The heir kills the wife of the testator, psychological terror, abandonment of the elderly and needy parents, groundless refusal of contact although there is an urgent desire for it, violation of the obligation to pay maintenance so that the child gets into an emergency situation.
On the other hand, occasional quarrels and verbal insults or a choice of partner and profession that the testator does not like are not sufficient for relative unworthiness to inherit. Unworthiness to inherit only exists in the case of gross neglect of duties between parents and children; the similar ground for disinheritance also covers breaches of duties between spouses.
And what happens to the share of the inheritance or compulsory share that becomes free?
If someone is unworthy to inherit, the heirs designated in the will take their place. However, the descendants of the unworthy heir have a right to a compulsory portion.
If there is no will, the descendants of the unworthy heir receive the share of the inheritance to which he or she would have been entitled. He is therefore skipped.
Once unworthy of inheritance - always unworthy of inheritance?
Once unworthy of inheritance - always unworthy of inheritance?
No.
The testator can remove the unworthiness to inherit by forgiving the heir.
The forgiveness may be express or may result from the circumstances. Testamentary capacity is not a prerequisite. A pardon is irrevocable; it cannot be withdrawn.
Even if the act was committed against a relative of the testator, the testator must forgive, not the relative.
- Example
Anja is unworthy of inheritance because she intentionally injured her mother. Several years have passed since the crime and the mother has meanwhile forgiven Anja. She can make this conclusive by appointing Anja as heir in a will. But even if Anja’s mother can no longer make a will because of her dementia, she can forgive Anja.
However, if Anja’s mother’s dementia is already so advanced that she can no longer comprehend the meaning of Anja’s wrongdoing and her own behaviour, forgiveness is also no longer possible.
- Practical tip
If the testator has forgiven the heir, he cannot disinherit him afterwards for the same act!
What is the difference between disinheritance and unworthiness to inherit?
What is the difference between disinheritance and unworthiness to inherit?
Unworthiness to inherit and disinheritance are different concepts.
- Absolute unworthiness to inherit applies by law, so it does not have to be ordered.
- Disinheritance, on the other hand, must always be ordered in a will, otherwise it is invalid.
- In the case of relative unworthiness to inherit, the testator must also take action, if he is in a position to do so, if he wants to punish the misconduct: He must disinherit. Otherwise the misconduct is meaningless under inheritance law. Apart from disinheritance, relative unworthiness to inherit therefore only has independent significance in those cases in which it was not possible for the deceased to disinherit. For then it leads to unworthiness to inherit (like the absolute grounds for unworthiness to inherit).
The unworthiness to inherit can be removed by mere pardon. On the other hand, a validly ordered disinheritance only ceases to exist upon revocation in the form of a will (exception only in the absence of testamentary capacity, see above).
Despite the differences, it is noticeable that all grounds for unworthiness to inherit are also grounds for disinheritance. This may seem surprising at first glance: How can one disinherit someone who by law cannot inherit? The reason is that a person who is (merely) unworthy of inheritance, who has not (also) been disinherited, can be forgiven more easily (see the previous paragraph). Moreover, there are more grounds for disinheritance than grounds for unworthiness to inherit. In the case of some behaviour on the part of the heir, the law thus allows the testator to order disinheritance without the law itself assuming unworthiness to inherit.
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