Descendants, spouses or registered partners are covered by intestate succession and could therefore inherit a lot. However, the above-mentioned persons are at least entitled to a statutory compulsory portion. If you make a mistake with the testator, this has consequences in terms of property law. However, does a dispute, no contact or a bad relationship lead to exclusion from any inheritance?
What is a compulsory portion?
The compulsory portion ensures that close relatives receive a minimum share of the assets. The entitlement exists as long as this quota is not yet covered by gifts or donations on death. This entitlement is lost for the same reasons as the statutory right of inheritance, for example through renunciation of inheritance or ineligibility to inherit. The compulsory portion is calculated by taking half of what the person entitled to the compulsory portion would be entitled to under statutory inheritance law.
Can the compulsory portion also be reduced?
The testator is entitled to reduce the compulsory portion by half again. The possibility of reducing the compulsory portion pursuant to Section 776 (2) ABGB is not given if the deceased avoided contact for no reason or gave justified cause for the lack of contact. The right to a reduction of the compulsory portion does not require any disapproving behavior on the part of the beneficiary of the compulsory portion and is therefore not constructed as a case of disinheritance.
However, the passive conduct of the testator alone is still not sufficient for this reason for exclusion. If both the testator and the beneficiary of the compulsory portion do not provide any reasons for contact due to a lack of interest, the reduction of the compulsory portion is permissible. A lack of a close relationship is also a reason for reducing the compulsory portion. This is understood to mean a longer period of time, which in the parent-child relationship is at least 20 years before the death of the testator.
Disinheritance
In addition, the heir may not receive anything at all. This is the case if he or she is disinherited. With regard to the reduction of the compulsory portion, § 770 no. 5 ABGB is relevant here because it standardizes a reason for disinheritance in the event of a gross breach of family law obligations. The prerequisite for this is a serious breach of duty, which results, for example, from failure to visit in the event of a life-threatening illness.
A combination of the two facts shows that gross neglect is required for the complete exclusion of any inheritance and that this presupposes a violation of the legal relationship between parents and children. In contrast, the reduction of the compulsory portion is only based on the expiry of a certain period of time and is therefore also possible if there is simply no contact.
Consequently, the Supreme Court is of the opinion that passive conduct by the testator himself is still not sufficient to reduce the compulsory portion. However, if the testator and the beneficiary of the compulsory portion both have no interest in maintaining contact, the testator is granted the option of §776 para. 2.
Sources:
Case Law Inheritance Law Editor: Wolfgang Kolmasch Zak 2022/591Zak 2022, 316 Issue 16 of 14.10.2022
Bittner/Hawel in Kletečka/Schauer, ABGB-ON1.05 § 770 Rz 3 (as of October 1, 2018, rdb.at)
Welser, Inheritance Law Commentary § 776 ABGB (as of 30.6.2018, rdb.at)