Statutory Share in Austria: Calculation, Claiming, and Statute of Limitations—What Testators, Relatives, and Heirs Need to Know

1. Who is entitled to a statutory share?

A person entitled to a statutory share is entitled to that share if they would be entitled to an inheritance under intestate succession, have not been disinherited, and have not waived their statutory share. 

Since the comprehensive reform of inheritance law brought about by the Inheritance Law Amendment Act of 2015 (ErbRÄG 2015, effective January 1, 2017), descendants (children, grandchildren, etc.) and the spouse or registered partner are entitled to a compulsory share. Parents and siblings, on the other hand, are no longer included among those entitled to a compulsory share—a significant change from the previous legal situation.

2. How much is the statutory share?

The statutory share amounts to half of the legal share of the estate. It is not a share of the estate, but rather a purely monetary claim. The claim to the statutory share is a monetary claim; the person entitled to the statutory share has no right to participate in the administration and representation of the estate; the claim to the statutory share consists solely of a monetary claim.

3. How is the statutory share calculated?

a) Reporting Date and Valuation

At the request of a person entitled to a compulsory share, the entire estate is described in detail and appraised (inventory) for the purpose of determining the compulsory share; the appraisal must be based on the date of the decedent’s death (= reference date).

The starting point is the net estate: First, all estate debts (including funeral expenses) and the costs of the probate proceedings are deducted from the estate’s assets (real estate, bank balances, securities, etc.).

b) Offset for gifts – often the decisive factor in practice

Anyone who gives away significant assets during their lifetime in the hope of reducing the statutory share will be held accountable by the law: Gifts may be added to the estate for calculation purposes. Gifts to third parties who are not entitled to a statutory share must be included if they were made within the last two years prior to death. There is no time limit for gifts made to statutory heirs themselves—they must generally be included in the estate calculation regardless of when they were made.

The law prescribes a clear method for valuation: The gifted property is valued as of the date of the actual gift; this value is then extrapolated to the date of death using a consumer price index published by Statistics Austria.

4. Against whom and when must the claim be asserted?

a) Person liable for the statutory share

The mandatory inheritance claim must be satisfied from the estate and, after the estate has been distributed, by the heirs. If the statutory share is not covered, or not fully covered, by a bequest or gift, the legatees, in addition to the heirs, must contribute proportionally up to the value of the estate—with the exception of a spouse who has a statutory advance legacy. If the estate is insufficient, the recipient of the gift is also subsidiarily liable (Section 789 ABGB).

b) Due Date

The person entitled to a compulsory share acquires that right upon the death of the decedent. However, he or she may not claim the monetary portion of the compulsory share until one year after the decedent’s death.

This payment moratorium is intended to give the heir time to secure the necessary funds without being forced to immediately sell off estate assets.

c) Deferral

At the request of a person obligated to pay a statutory share, the claim to a statutory share must also be deferred by a court if, taking all circumstances into account, fulfillment of the claim would impose an undue hardship on that person—in particular, if the person would be forced to sell his or her home or business due to a lack of sufficient alternative assets. The court may defer the claim for a maximum of five years following the death of the decedent or authorize payment in installments; in particularly meritorious cases, this period may be extended to a total of no more than ten years.

d) Right to Information

Heirs entitled to a compulsory share have a statutory right to information regarding all gifts relevant to the compulsory share. The purpose of this right to information is to enable the heir entitled to a statutory share, by providing information about gifts, to quantify or at least roughly estimate the amount of their statutory share claim, thereby allowing them to assert their claim against the obligor through legal action.

5. Statute of limitations—an often underestimated risk

This is where the biggest pitfalls lie in practice. Since the 2015 Inheritance Law Amendment Act (ErbRÄG 2015), the law has provided for a clearly structured statute of limitations:

The right to claim the monetary portion of the statutory share, to bring a claim against the recipient of a gift for reducing the statutory share, or to contest a last will and testament must be asserted in court within three years of becoming aware of the facts relevant to the existence of the claim. Regardless of such knowledge, these rights are barred by the statute of limitations thirty years after the death of the decedent.

There are therefore two deadlines:

• Subjective deadline: 3 years from the date of becoming aware of the facts giving rise to the claim
• Absolute deadline: 30 years from the date of death (regardless of whether the death was known)

Important: The three-year statute of limitations begins, at the earliest, upon the expiration of the first year following the death. The Supreme Court has ruled that the short statute of limitations under § 1487a ABGB for mandatory inheritance claims no sooner than one year after the testator's death begins to run—because only then does the monetary obligation actually become due (Section 765(2) of the ABGB). According to a subsequent decision by the Supreme Court, this principle also applies to the recipient’s subsidiary liability under § 789 ABGB, because it would constitute a significant contradiction in legal assessment to have the statute of limitations for the subsidiary claim begin earlier than that for the primary claim against the estate or the heir who has accepted the inheritance.

6. Reduction of the statutory share –  when there is no contact

The testator may reduce the statutory share to half reduce , if there has been no close relationship between him and the person entitled to a compulsory share, or if such a relationship has not existed for a long period of time. However, he is not entitled to this right if the deceased avoided contact without cause or provided a valid reason for the lack of contact.

Conclusion: Action is needed on both sides

The right to a compulsory share protects close relatives from being completely disadvantaged, but it is not automatic. Anyone who fails to assert their claim in a timely manner loses it due to the statute of limitations. An heir who is unable or unwilling to pay has the option to seek a court-ordered deferral, but is well advised to initiate a discussion at an early stage.

Both testators and potential beneficiaries of a statutory share should seek legal advice early on; the right to a statutory share offers flexibility: through forward-looking estate planning as well as through the consistent exercise of legal rights.