If there is no valid will, the law determines who the heirs are. This is intestate succession under the ABGB. Under the parentelic system, the children and their descendants inherit first. Under § 744 ABGB, the spouse or registered partner receives 1/3 alongside children, 2/3 alongside parents, and everything if neither children nor parents are alive. The spouse or registered partner also receives the statutory preference legacy (home and household effects, § 745 ABGB). Stepchildren do not inherit. Unmarried cohabiting partners who lived with the deceased in the same household for at least the last three years inherit only if there are no statutory heirs (§ 748 ABGB); otherwise they receive the statutory preference legacy for one year.
When someone dies without leaving a valid will, it is not the family who decides who inherits – it is the law. Intestate succession is governed by the Austrian Civil Code (ABGB). It determines which relatives inherit, in what order and in what shares. This page explains the rules as they currently stand under the Inheritance Law Amendment Act 2015 (ErbRÄG 2015), which applies to all deaths on or after 1 January 2017.
When does intestate succession apply?
Intestate succession applies whenever there is no last will, or the last will does not cover everything. This is the case in particular if:
- there is no will,
- a will is invalid – for example because of a formal defect, lack of testamentary capacity or undue influence,
- a will covers only part of the estate; intestate succession then applies to the rest,
- the appointed heirs renounce the inheritance or have died before the deceased, and there is no provision for a substitute heir.
If there is a valid will, its terms generally take precedence. Intestate succession is therefore the ‘fallback rule’ for cases where the deceased has not made any valid arrangements.
The parentelic system – children and descendants first
Under the parentelic system, Austrian law ranks relatives in lines. A closer line inherits before the next line receives anything at all:
- First line: the children of the deceased and their descendants (grandchildren, great-grandchildren). If a child has already died, that child’s descendants take their place (right of representation).
- Second line: the parents of the deceased and their descendants (siblings, nieces, nephews) – only if there is no one in the first line.
- Third line: the grandparents and their descendants.
- Fourth line: the great-grandparents.
As long as there are descendants (first line), parents, siblings and more distant relatives receive nothing under intestate succession. The children share the portion due to them equally.
Share of the spouse or registered partner (§ 744 ABGB)
The spouse or registered partner inherits alongside the relatives and receives a fixed share under § 744 ABGB:
- 1/3 alongside children (descendants) of the deceased,
- 2/3 alongside parents of the deceased,
- everything if there are neither children nor parents.
This gives the spouse or registered partner particularly strong protection under inheritance law. They take precedence over more distant relatives: if neither children nor parents are alive, they inherit the entire estate.
The spouse’s statutory preference legacy (§ 745 ABGB)
In addition to their share of the estate, the spouse or registered partner is entitled to a statutory preference legacy (§ 745 ABGB). This means that they also receive:
- the right to go on living in the matrimonial home (or the home shared with a registered partner), and
- the movable items that belong to the shared household (household effects).
This preference legacy is meant to protect the surviving partner from losing their familiar surroundings. The surviving partner receives it regardless of their share under § 744 ABGB.
Examples – for illustration only
Want a different outcome? Make a will
Intestate succession follows a standard pattern set by law – but it does not suit every situation. If you want to provide for a blended family, an unmarried cohabiting partner, charitable causes or a particular division of your estate, you need to make your own arrangements. You do this with a valid will. A will lets you change the intestate rules to a large extent. The limit, however, is the compulsory portion of descendants and the spouse, which cannot simply be taken away. If you want to depart from the statutory distribution, consider your will and the compulsory portion together.
How we help you
At Teamanwälte, a law firm in Vienna, we work out with you who inherits under intestate succession in your specific case and whether the outcome matches your wishes. If necessary, we set out how you can arrange things differently in a legally sound way – calmly, clearly and in line with current law.
Contact: Teamanwälte, Mag. Johannes Bügler · Baumgartenstraße 82, 1140 Vienna · Phone +43 1 419 13 18 · office@teamanwaelte.at. Book an initial consultation about intestate succession in your case.
Please note: This page provides general information and does not constitute legal advice on any individual case. The examples are deliberately simplified and for illustration only. In an individual case, the outcome may differ because of gifts, debts, preference legacies or compulsory portion issues. We give no guarantee of success.