The compulsory portion is a minimum entitlement to the estate that the law guarantees to close relatives. It amounts to half of the intestate share under § 759 of the Austrian Civil Code (ABGB) and is purely a claim to money. Since the ErbRÄG 2015 (for deaths on or after 1 January 2017), only descendants and the spouse or registered partner are entitled to a compulsory portion – parents and grandparents no longer are. The claim becomes time-barred after three years.
The compulsory portion – also called the reserved share – is one of the most frequently misunderstood concepts in Austrian inheritance law. It guarantees close relatives a minimum share of the estate, even if they were left out of the will or disinherited. At the same time, a lot of outdated information is still in circulation, because the Inheritance Law Amendment Act 2015 (ErbRÄG 2015) fundamentally reformed the compulsory portion for all deaths on or after 1 January 2017. This page sets out the current law: who is entitled to a compulsory portion, how much it is and how to claim it.
What is the compulsory portion – and how much is it?
The compulsory portion is a minimum entitlement to the estate that the law guarantees to close relatives. As a rule, a will cannot take it away – unless there are statutory grounds for disinheritance. So even someone who receives nothing under the will usually keeps their compulsory portion.
The amount is clearly defined: the compulsory portion is half of what the person entitled would receive under intestate succession (§ 759 ABGB). So you first work out the intestate share and then halve it. What counts is the value of the estate at the time of death – after deducting debts and adding lifetime gifts that have to be taken into account.
Who is entitled to a compulsory portion?
Since the 2015 reform, only the following are entitled to a compulsory portion:
- descendants – that is, children and, if a child has predeceased, that child’s own children (grandchildren), and
- the spouse or registered partner (§ 757 ABGB).
The compulsory portion is a claim to money – not to specific items
A key point that is often underestimated: the compulsory portion is purely a claim to money (§§ 765, 766 ABGB). People entitled to a compulsory portion have no right to specific items from the estate – not to a particular flat, a piece of jewellery or a car. They can only demand the value of their share in money. The heirs keep the assets and pay out the compulsory portion.
Because immediate payment can be hard on the heirs – for example, if the estate consists mainly of a property – the law provides for a deferral of payment. Under certain conditions, payment of the compulsory portion can generally be deferred for up to five years, and in cases of hardship for up to ten years (§ 766 ABGB). In practice, this is often the crux: not whether payment is made, but when and how.
Worked example: a widow and two children
Step 1 – intestate succession: Alongside children, the spouse inherits one third (§ 744 ABGB), and the children share the remaining two thirds.
Widow: 1/3 of €600,000 = €200,000
Each child: 1/2 of €400,000 = €200,000
Step 2 – compulsory portion (= half of the intestate share, § 759 ABGB):
Widow’s compulsory portion: 1/2 of €200,000 = €100,000
Compulsory portion per child: 1/2 of €200,000 = €100,000
If the man had appointed only one of the children as sole heir in his will, the widow and the child who was left out could each claim their compulsory portion of €100,000 in money. This is a simplified example that leaves out lifetime gifts, debts, preference legacies and the spouse’s statutory preference legacy. The actual calculation in an individual case can differ considerably.
Reduction of the compulsory portion and disinheritance
The compulsory portion is not untouchable in every case. Two situations deserve attention:
Reduction of the compulsory portion (§ 776 ABGB)
If the deceased and the person entitled to the compulsory portion never had a close family relationship, or at least had not had one for a long period before the death – for example, because there had been no contact for decades – the compulsory portion can be reduced by half. The deceased has to order this reduction of the compulsory portion in the will. It is ruled out if the deceased avoided contact without good reason or gave legitimate cause for the lack of contact.
Disinheritance
Complete disinheritance is only permitted on grounds for disinheritance that are precisely defined by law (for example, serious criminal offences against the deceased or gross neglect of family duties). Without such grounds, the person entitled keeps the compulsory portion. ‘Disinheriting’ someone in the everyday sense – simply leaving them out of the will – therefore does not cost them their compulsory portion.
Claiming the compulsory portion and the limitation period
The compulsory portion has to be claimed from the heirs. If they do not pay it voluntarily, or do not pay the correct amount, you can pursue it with a court action to claim the compulsory portion. Usually, the value of the estate – and of any lifetime gifts that have to be taken into account – must be established first. For this purpose, the persons entitled have a right to information and to a valuation of the estate, which they can assert against the heirs.
The time limit is important: the claim to a compulsory portion becomes time-barred after three years, counted from when the person entitled learns of the death and of the circumstances relevant to the compulsory portion (§ 1487a ABGB). You should not leave it until the last minute – if you wait too long, you risk losing the claim.
How we help you
We want to be honest with you here: the probate proceedings themselves are handled by a civil-law notary acting as court commissioner – you do not need a lawyer of your own for that. A lawyer becomes important when it comes to pursuing or defending against compulsory portion claims, or when a dispute arises between those involved:
- Claiming the compulsory portion – if nothing is paid out or the amount paid is too low,
- Defending against compulsory portion claims – if you, as an heir, are faced with excessive demands,
- Valuation & lifetime gifts – if the value of the estate or the lifetime gifts to be taken into account are disputed,
- Deferral of payment – if immediate payment would be too much for you as an heir.
Contact: Teamanwälte, Mag. Johannes Bügler · Baumgartenstraße 82, 1140 Vienna · Phone +43 1 419 13 18 · office@teamanwaelte.at. Book an initial consultation about your compulsory portion case.
Please note: This page provides general information and does not constitute legal advice on any individual case. The worked example is simplified and cannot be applied to specific cases. We give no guarantee of success. For a binding assessment of your individual situation, please book a personal consultation.