Here you can find out more about what an unmarried partner is entitled to inherit in Austria.
Intestate succession in Austria is based on two pillars.
The first pillar is family succession, which means that the relatives of the deceased inherit.
The second pillar is the right of inheritance for the spouse or registered partner.
On the other hand, unmarried life partners do not fall into either of these categories; with few exceptions, they are not mentioned at all in Austrian inheritance law. If the testator has not stipulated anything to the contrary in a will, the partner is therefore usually left with nothing.
In practice, this often causes problems. There are many unmarried couples and it is not always remembered to include the partner in a will.
- Example
A couple has been together for over 20 years, they have never married. They have no children, the man’s mother lives in a nursing home. If the partner dies suddenly without a will, his elderly mother is the heir. The partner inherits nothing.
Does my partner inherit in Austria if I have not made a will?
Does my partner inherit in Austria if I have not made a will?
According to Austrian intestate succession, the partner is only entitled to a so-called extraordinary right to inherit. Accordingly, partners are only eligible if there is no one in any group of heirs who can be the legal heir.
- Example
A cousin of the deceased, whom she may not even know, prevents the extraordinary right to inherit of the long-term partner.
Partners only inherit if the state or a legatee would otherwise inherit. This case, of course, only occurs extremely rarely. In the vast majority of cases, the partner does not inherit anything if there is no will in her favour.
The fact that partners are not legal heirs but only have an extraordinary right to inherit also means that they are not entitled to a compulsory portion. One partner can thus leave her estate to her best friend or neighbour and her partner is not entitled to even a small part of the estate.
At this point, it is worth taking a brief look at the right of spouses to inherit: According to the intestate succession, i.e. without a will, spouses are entitled to a share of at least one third up to the entire estate. In addition, spouses are entitled to a compulsory portion. They therefore have a much stronger position in Austrian inheritance law.
- Practical tip
If you want your partner to become your heir, you have to state this in a will. If you do not do this, your partner will in most cases receive nothing.
Who qualifies as partner under Austrian inheritance law?
Who qualifies as partner under Austrian inheritance law?
In order to be considered partners under inheritance law, one must have lived together in a cohabiting household for at least the last 3 years.
The intensity of cohabitation must be comparable to that of a married couple: The cohabitants must live in the same household, be lovers and form an economic community; a purely friendly relationship or merely living together in a shared flat are not sufficient. The overall impression is always decisive. It is therefore also possible to live in different flats if there is otherwise the typical special bond of cohabitants. Separate living may be necessary, for example, for professional or health reasons.
Whether the cohabitation is between same-sex or opposite-sex partners is irrelevant.
- Example
Anton and Barbara met when they were both already over 60 years old. Without marrying, they lived together in a house for 8 years until Barbara became ill with dementia and moved into a nursing home. Until Barbara passed away, she was visited and cared for by Anton every day in the home, and the two still spent a lot of time together. At Barbara’s death, Anton is considered her partner in life.
Christine and Doris met two years ago, they have been living together in Christine’s flat for 1.5 years until Christine is killed in a car accident. Doris is not considered her partner because they have lived together in the same household for less than 3 years.
Work colleagues Esther and Franz are both single. For four years they have met on average once a month and spent the night together. They are not qualified as partners.
Under Austrian law, will my partner's children inherit if I die?
Under Austrian laws, will my partner's children inherit if I die?
No, if your partner has “brought” children into the relationship, these children are not legally related to you at all. If you have not adopted the children, they are not related to you and are not your legal heirs. According to the intestate succession, they therefore do not inherit anything.
- Practical tip
If you live in a patchwork family and want your partner’s children to inherit something from you as well, you must determine this in a will.
Can my partner stay in my home after my death?
Can my partner stay in my home after my death?
Yes, for a short time. The partner is entitled to a so-called statutory advance bequest. This serves to protect the surviving partner so that he or she does not lose his or her entire living environment from one day to the next. However, in contrast to the spouse, the partner is only entitled to the advance legacy for the duration of one year. It therefore only serves as short-term protection.
The advance bequest includes the movable objects belonging to the household if they are necessary for the continuation of the household according to the previous living conditions. This includes furniture, crockery, carpets, hoovers, lawn mowers and the like. In addition, the partner also has the right vis-à-vis the heirs to remain in the deceased’s home for one year.
However, both are limited to one year. After the expiry of one year, the partner is no longer entitled to it.
- Practical tip
After your death, your partner has no long-term right to live in your home. If you want your partner to continue to be allowed to stay in your home, you must make appropriate arrangements.
A prerequisite for the partner to receive the advance bequest is that he or she has lived in the joint household for the last three years.
In addition, the deceased must not still have been married, otherwise the advance bequest would go to the spouse.
Whether the surviving partner is married to someone, on the other hand, is irrelevant.
- Example
Ida and Johannes have lived together in Ida’s flat for 5 years. When Ida dies, her sister inherits the flat. Johannes is allowed to stay in the flat for another year and use the household effects, then he no longer has the right of residence.
What happens to the joint condominium in Austria if my partner dies?
What happens to the joint condominium in Austria if my partner dies?
If the flat is co-owned by partners, there is a so-called owner partnership. There are special regulations here.
In principle, the surviving partner receives half of the deceased’s share. The flat then belongs to him or her alone.
However, the two co-owners can also conclude an agreement with a lawyer or notary in the event that one of them dies. In this way, it can be determined who is to receive the half share instead of the deceased and thus become the new partner in ownership. If there is such an agreement, the other partner no longer automatically gets the second half of the flat. These agreements are important because it can be determined that a third party can acquire the half share. A provision in the testamentary disposition of the deceased that someone other than the surviving partner gets the second half of the flat is invalid. The surviving partner should not be forced to become a co-owner in an owner partnership with someone else.
Regardless of whether the surviving partner or someone else designated in an agreement finally takes over the half share, the takeover does not come for free. The transferee must pay a transfer price equal to half the market value of the apartment to the estate. Since it is often not possible for the surviving partner to “buy” half of the flat, the law provides for a privilege for certain persons who only have to pay a lower transfer price or even no transfer price at all. Owner partners entitled to a compulsory portion who have an urgent need for the flat are privileged. For unmarried partners, however, this is precisely where the problem lies: They are not entitled to a compulsory portion. Therefore, in contrast to spouses, unmarried partners must pay the full price. Even a possible deferral of the transfer price, which the court can provide for, does not apply to unmarried partners.
The deceased may, however, instruct in a testamentary disposition that the obligation to pay be waived. A gift of the one-half share on death is also permissible.
The surviving partner and the remaining heirs may also agree on a transfer price by mutual consent under certain conditions.
If the surviving partner does not want to or cannot take over the other half share, he or she can renounce it. As a result, the entire flat is then auctioned off and the partner receives a corresponding part of the proceeds.
- Practical tip
In order to spare the surviving partner a potential auction of the joint home, it is worth making provisions in a will or agreeing on a gift on death.
- Example
Karoline and Leonhard have bought a condominium together, which they both own. When Leonhard dies, his share of the property passes to Karoline. She has to pay half of the market value of the entire flat to the estate.
The flat does not belong to us jointly, what applies then?
The flat does not belong to us jointly, what applies then?
If the flat is the sole property of the surviving partner, the answer is straigtforward: The surviving partner remains the sole owner.
If, on the other hand, the flat was the sole property of the deceased partner, it becomes part of the estate and passes to the heirs. Since unmarried partners are not legal heirs, they cannot inherit the flat without a will. The surviving partner is then only entitled to a one-year right of residence within the framework of the advance bequest (see above). After that, the partner no longer has the right to remain in the flat.
What happens to our rented flat under Austrian laws?
What happens to our rented flat under Austrian laws?
If the flat is rented by the surviving partner, no problems arise. The tenancy agreement continues as before.
Even if the flat was rented by the deceased, the death of the tenant does not mean termination of the contract. If the tenancy is subject to the Austrian Tenancy Act (in German: “Mietrechtsgesetz”, “MRG”), there is a special legal succession: Under certain conditions, certain close relatives of the deceased main tenant can enter into her tenancy agreement. This special rule on entry into the main tenancy takes precedence over legal succession.
Unmarried partners are covered by this right of entry according to sec. 14 MRG if they have lived together in the rented flat for at least 3 years before the time of death or if they have moved in together. This is a relaxation of the basic rule, because the criterion of 3 years does not necessarily have to be fulfilled. In addition, the surviving partner must have an urgent need for accommodation. If these conditions are met, the surviving partner automatically enters into the tenancy. If not only you as the partner, but also other relatives of your deceased partner meet the requirements for entry, you can also enter into the tenancy agreement together.
However, it is possible to object to the entry into the tenancy within 14 days of the death of the main tenant. In this case, the tenancy right falls to the estate and is then subsequently transferred to the heirs. The tenancy right also always falls into the estate if there is no one who is entitled to enter or if sec. 14 MRG is not applicable. Important: In this case, the law grants both the landlord and the heirs (as new tenants) a special right of termination. The landlord is therefore only bound to the tenancy after an entry according to sec. 14 MRG, but not after a transfer of the tenancy to the heirs.
- Example
Manuel and Nora have moved into a new flat together. Nora is the main tenant. After they have lived in the flat for two years, Nora dies. Manuel, if he has an urgent housing need, can already enter the tenancy agreement at that time because they have moved in together.
Otto moved into Petra’s flat in Vienna 5 years ago, and they have lived there together ever since. When Petra dies, Otto can enter into the tenancy agreement. Due to his professional work in Vienna, his urgent need for housing is given, even though he has a holiday home in Carinthia.
Richard and Sarah have lived together for 4 years in a flat for which Richard has signed the tenancy agreement. As an investment property, Sarah bought another flat in the same house a year ago; it is currently empty. If Richard dies, Sarah cannot invoke an urgent housing need if the second flat is equivalent (a criterion to be assessed carefully by reffering to Austrian case law).
We have both signed the tenancy agreement, am I the sole tenant after my partner's death?
We have both signed the tenancy agreement, am I the sole tenant after my partner's death?
No.
If the tenancy agreement has been signed by both partners, the same rules of special legal succession just described in the previous section are initially applicable with regard to the co-tenancy right of the deceased partner:
If there is a close relative who lives in the joint household and has an urgent housing need, this close relative is entitled to enter and becomes the new co-tenant if sec. 14 MRG is applicable. In this scenario, however, the surviving partner cannot enter, because as she is already a tenant of the apartment, she does not have an urgent housing need. Whether minors themselves have an urgent housing need (and can therefore enter into the tenancy agreement) or have to refer to their family law housing claims against the guardian(s) depends on the individual case and is often difficult to answer.
If no one is entitled to enter or if sec. 14 MRG is not applicable, the co-tenancy right falls to the estate and passes to the heirs. In this case, however, the landlord has no right to terminate the tenancy because the surviving partner still remains the tenant.
- Example
Thomas is already 20 years old and able to support himself through his profession. However, he still lives in the household of his mother and her new (unmarried) partner. Both partners have signed the tenancy agreement. If Thomas’ mother dies, Thomas takes her place in the tenancy agreement. Thomas and his deceased mother’s partner are now co-tenants. However, if his mother’s partner had died instead of his mother, Thomas would have no right of entry because he is not related to his mother’s partner. Since in this case no one would be entitled to enter, the tenancy right of the deceased partner would fall into the estate and pass to his heirs. In this case it would be possible that Thomas’ mother ends up renting the flat together with the heirs after her deceased partner.
- Practical tip
If you and your partner are both the main tenants and you want you to become the sole main tenant after your partner’s death, he must make you his sole heir in a will. If he does not do this and there is no one else who is entitled to enter into the tenancy agreement, your partner’s heirs become your co-tenants. These can be his children (from another relationship), parents or other relatives. If your partner was not (yet) divorced, even his spouse can inherit the co-tenancy. You cannot choose who inherits your partner. In addition: Once someone is a co-tenant, they can only get out of the tenancy agreement again with the landlord’s consent.
You need to be particularly careful here: In order for you to become the sole tenant, you must be the heir. If the tenancy is only to be transferred to you in a legacy or by a gift on death, this is only valid if the landlord agrees.
Legal advice in the course of drawing up your will is definitely recommended if you rent a flat together.
I have cared for my partner for years, do I get anything?
I have cared for my partner for years, do I get anything?
This is possible, yes.
As an unmarried partner you are entitled to the statutory care bequest if you have provided more than minor care for your partner for at least 6 months in the last 3 years before her death. This is not about providing professional nursing care, but about providing the necessary care and assistance. The term is to be understood broadly and ranges from help with dressing, personal hygiene and cooking to cleaning the flat and doing the laundry. A not merely minor extent is reached at about 20 hours per month. The required 6 months within the last 3 years do not have to have been without interruption.
The amount of the care bequest depends on the type, duration and extent of the care provided and the benefit that the deceased partner has received as a result. However, the value of the estate or any care allowance have no influence on the amount.
You are not entitled to the care bequest if you have already received payment for the care services.
The care bequest is a legal legacy. Your partner does not have to specify it in a testamentary disposition. You are directly entitled to a corresponding payment from the estate if the requirements are met.
Can I bequeath everything to my partner in Austria, so that my partner can inherit?
Can I bequeath everything to my partner in Austria, so that my partner can inherit?
That depends: You can appoint your partner as your sole heir in a will. However, the right to a compulsory portion sets certain limits. If there are beneficiaries of the compulsory portion, they are entitled to a certain part of your estate. Your children (and their descendants) and your spouse are entitled to a compulsory portion.
- Example
Ulrich has two children with his partner. In a will he stipulates that his partner should receive everything. This is not possible because both of Ulrich’s children have a right to a compulsory portion. Therefore, the partner can only receive half of the estate at the most.
Important: If Ulrich and his partner had been married, then she could receive not only half, but two thirds of the estate. Because then the children’s compulsory share would be lower (1/6 each instead of 1/4; you can find more about the compulsory share here).
Can I give my car to my partner without him becoming heir?
Can I give my car to my partner without him becoming heir?
Yes.
You can leave the car to your partner in a legacy (bequest).
Your partner is then entitled to have the car handed over to him or her by the heir.
Can I access my partner's bank account?
Can I access my partner's bank account?
No. If the bank account is in the name of your partner, it falls into the estate and you have no access to it. The heirs will then have access.
Can I give something to my partner on my death by way of a donation on death?
Can I give something to my partner on my death by way of a donation on death?
Yes, this is possible. A gift on death is a contract by which it is agreed that the donee will receive a certain thing upon the death of the gift-giver. More details here. Formal requirements must be fulfilled.
Any more questions on Austrian inheritance law?
Inheritance law is our passion. We are your inheritance lawyer for Austria.
We listen and tell you whether we can assist or not. You will not be surprised by any unexpected costs, we will inform you of any costs incurred in good time.
Was this helpful?
We are pleased to receive your google rating. Help us to remain visible and provide useful information on Austrian inheritance law.
Cover picture:
Symbol images:
by Stock-Asso
Symbol picture (room with balcony) by Free-Photos on Pixabay
by evrymmnt
by DifferR