Restrictions on the freedom to dispose of one’s succession by will (reserved portion).
Last update: 10/1/2012
The reserved portion, which limits the testamentary freedom, amounts to half of the legal inheritance share for descendants (see question 3 for information on the legal inheritance share) and, in the absence of descendants, to one third of the legal inheritance share which therefore goes to the ascendants. The surviving spouse receives half of his/her legal inheritance share. There is the possibility to decrease the reserved portion in the absence of family contact.
The beneficiaries of the reserved portion can waive the reserve, before the succession is opened, by a contract (notarial instrument) concluded between the future deceased and the future compulsory heir.
Detailed information
Is there a reserved portion set aside for heirs? What percentage of the estate does this reserved portion represent? What is its legal nature?
The reserved portion to which the children and surviving spouse of the deceased are entitled corresponds to half of their legal portion of inheritance. Parents are only entitled to the reserved portion if the deceased has not left any children (§ 762 ABGB); in this case, it is the equivalent of a third of the legal portion of inheritance. The reserved portion is a debt claim against part of the financial value of the estate.
What is the procedure to be followed to assert a right to the reserved portion? What are the time limits?
Heirs must assert their right to the reserved portion before a court within three years (§ 1487 ABGB). This period of prescription runs from the time the party entitled to inherit could have asserted his/her right.
Is it possible to renounce the reserved portion?
Any forced heir can renounce during his/her life his/her rights in this regard, by way of a notarial deed (Notariatsakt) or by filing a declaration before a court (551 ABGB).
