In the absence of a will, who inherits and how much?
Last update: 10/1/2012
In the absence of a will, the following principles apply to different scenarios:
- If the deceased was unmarried and without children: the parents of the deceased inherit equal shares; if the parents are deceased, the deceased’s siblings inherit.
- If the deceased was unmarried and leaves children: the children inherit equal shares.
- If the deceased leaves a spouse: The surviving spouse becomes sole heir, failing descendants, a mother and a father, the siblings and grandparents of the deceased.
- If the deceased leaves a spouse and children: One third goes to the spouse, the rest is shared equally among the children.
Do partners of a registered or unregistered partnership inherit?
The law concerning registered partnerships for same-sex couples entered into force on 1 January 2010. As far as succession law is concerned, in the case of a registered partnership these same-sex partners have the same rights as spouses.
However, Austrian law does not grant an automatic right to inheritance to the surviving partner of a non-registered partnership. He/she can only become an heir where a will provides it. However, the tenancy/housing law protects the surviving partner. In the event where the deceased and his/her partner owned the apartment which they bought together ( Wohnungseigentumspartnerschaft ) the deceased’s share becomes the surviving partner’s property.
Detailed information
In the absence of a will, the following principles apply:
If the deceased was unmarried and without children, the estate devolves to the parents entitled to inherit and to their descendants (brothers and sisters of the deceased) (§§ 735 and 736 ABGB).
If the deceased was unmarried and leaves children, the estate is divided equally between the children (§ 732 ABGB).
If the deceased leaves a spouse, the surviving spouse obtains 2/3 of the estate, the remainder passes to the parents and brothers and sisters of the deceased (§ 757 ABGB). The spouse is entitled to the estate set aside for the surviving spouse over and above his/her equal share with the others (it is not part of the estate); this concerns for example the right to reside in the marital home or the right to the household furniture (§ 758 ABGB).
If the deceased leaves a spouse and children, the surviving spouse obtains 1/3 of the estate, plus the estate set aside for the surviving spouse over and above his/her equal share with the others. 2/3 divided equally evolves to the children (§ 757 ABGB).
- What are the rights in the succession of partners of registered or non-registered partnerships?
Registered partners (Eingetragene Lebenspartner) have the same rights as a spouse (§ 537a ABGB).
Note: registered partnerships (same as civil solidarity pacts) are intended only for same sex partners.
