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Who inherits the life insurance?
In general, a distinction must be made between life insurance policies with or without a beneficiary. For example, inheritance and endowment insurance policies are usually in the name of the deceased person themselves; in the event of their death, the sum insured then falls to the estate. If, on the other hand, a beneficiary has been named in the insurance contract, the sum insured is generally due to this person. The sum insured is then not to be included in the policyholder’s estate (RIS-Justiz RS0007845). The beneficiary acquires a claim under private law directly from the insurance contract.
However, there may also be certain restrictions here. The sum insured to be paid out is legally treated as a gift and must therefore be added to the estate for the calculation of compulsory portion claims. This can easily lead to a breach of the compulsory portion. In such a case, the beneficiary is obliged to contribute part of the amount paid out to him/her to cover the compulsory portion.
The Supreme Court recently dealt with the question of the extent to which an entitlement in an insurance contract can be established, revoked or amended by a testamentary disposition.
In general, § 166 para. 1 VersVG must be observed in this context. In case of doubt, this determines the policyholder’s entitlement to designate a third party as the beneficiary or to appoint another party in place of the third party so designated without the insurer’s consent.
In the specific case (7Ob136/18b), the testator appointed the first and second defendants as her heirs. Due to the structure of the testamentary disposition, it was also clear that they would also be the beneficiaries of the life insurance policy she had taken out. This conclusion was reached primarily due to the fact that, in addition to the appointment of the heirs, precise legacies were also determined. These legacies were to be paid out by the heirs insofar as the amounts “after deduction of the funeral costs and liabilities are covered by the remaining bank balances, insurance policies or cash“. The testator therefore also counted existing insurance sums among those parts of her estate that were to benefit the heirs and satisfy any legacies.
In its decision, the Supreme Court emphasized that the designation of a third party as beneficiary provided for in § 166 VersVG only concerns the relationship with the insurer. The legal relationship between the policyholder and the beneficiary, on the other hand, always depends on the agreement made between them or the existing legal situation. A testamentary disposition regarding the beneficiary from a life insurance policy is therefore already permissible on the basis of the provisions of civil law (insofar as it does not clearly conflict with other agreements) and is effective between the alleged beneficiaries.
Accordingly, as long as a testator is not contractually bound to certain dispositions with regard to the sum insured under their life insurance policy, it is possible to determine the beneficiary’s entitlement by way of a last will and testament. Of course, it is always advisable to explicitly state such an entitlement in the testamentary disposition, as the content can only be determined by way of interpretation if the wording is unclear.
If you have any questions about your will, we will be happy to assist you. We will provide you with comprehensive advice on the formulation of your last will and testament. Make an appointment on 01/505 77 00 or at office@toplaw.at