Compulsory shares: 12 tips from a lawyer

Learn the essentials of the statutory compulsory share: how to obtain yours, the legal remedies available and how heirs can defend unjustified claims. Experienced inheritance lawyer Mag. Patrick Maydell, LL.M. offers these practical tips.

1. What is a compulsory share?

A person can generally choose whom to benefit on death. Compulsory-share law limits that freedom: certain persons must receive a specified part of the estate through a testamentary disposition, such as a will. If they do not, those entitled have a monetary claim against the estate or the heirs.

The compulsory share must be freely available to its recipient, without conditions, encumbrances, time limits or obligations restricting it.

2. Who is entitled?

The deceased's descendants, meaning children, and spouse or registered partner are entitled to a compulsory share. Siblings and parents are not.

3. How much is the compulsory share and how is it calculated?

It is half the statutory inheritance share. Under intestate succession, a spouse alongside children receives one third and the children together two thirds. The spouse's compulsory share is therefore one sixth and the children's combined share one third. If there is no spouse, children share equally: with three children, each statutory share is one third and each compulsory share one sixth.

The calculation uses the net estate: assets less liabilities. Liabilities include the deceased's debts and costs arising from death, the funeral and probate proceedings. Legacies do not reduce the net estate for this purpose.

4. When must you claim?

The claim arises at death but can only be demanded one year afterwards. It becomes time-barred three years after knowledge of the facts establishing the claim, described here as three years after learning of the death.

5. Who owes the compulsory share?

Before the estate is formally transferred to the heirs by the probate court (Einantwortung), the estate owes it; afterwards, the heirs do. If the deceased did not provide the entitlement in full, for example through lifetime gifts, a monetary claim arises. Legatees must then contribute proportionately alongside the heirs, up to the value of the estate.

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Call +43 1 295 4251 for a free initial assessment by telephone or email office@maydell-law.at.

6. How are gifts added to and credited against the compulsory share?

6a. Gifts to persons entitled to a compulsory share

If the deceased reduced their assets through lifetime gifts to such persons, for example children, the other entitled persons and the heirs may demand that these gifts be added and credited. The gift's value is first added to the estate, and compulsory shares are calculated on the increased amount. The recipient must then credit the gift against their own compulsory share and receives correspondingly less. Gifts to persons entitled to a compulsory share are included without a time limit.

Example: assets of EUR 110,000 less debts of EUR 30,000 leave a net estate of EUR 80,000. There are two children, each entitled to half under intestate succession and a compulsory share of one quarter. The first child received a car worth EUR 20,000 during the deceased's lifetime. The second child may demand inclusion of that gift. The calculation basis becomes EUR 100,000 and each compulsory share EUR 25,000. After crediting the EUR 20,000 car, the first child receives EUR 5,000.

6b. Gifts to persons not entitled to a compulsory share

At an entitled person's request, gifts to persons outside the compulsory-share group are also added when calculating the shares. However, this applies only to gifts made within two years before death.

Example: the net estate is EUR 80,000. A year before death, the deceased gave a friend EUR 10,000. The two children, with no surviving spouse, can request its inclusion. The calculation basis becomes EUR 90,000, giving each child one quarter, or EUR 22,500.

6c. Exceptions

The following gifts are exempt from inclusion and do not generate an additional compulsory-share payment:

• gifts fulfilling a moral duty, such as a ring for a spouse's silver wedding anniversary;
• gifts for charitable purposes, such as a donation to a kindergarten;
• gifts that did not reduce the donor's capital, made from current income and savings from the preceding year.

7. How can you enforce your compulsory share?

If you believe you have received too little, you can bring an action for supplementation of the compulsory share against the heirs or estate. In practice, I recommend first calculating the entitlement correctly and sending a written demand. If an out-of-court agreement cannot be reached, proceedings must be brought.

8. Can a compulsory share be taken away?

Deprivation of the compulsory share through disinheritance requires a statutory ground. These include the entitled person:

• committing an offence against the deceased or close relatives, such as a spouse or sibling, which can only be committed intentionally and carries more than one year's imprisonment, for example aggravated bodily harm or serious fraud;
• intentionally preventing or attempting to prevent fulfilment of the deceased's true last wishes, for example by forging a will;
• reprehensibly causing the deceased serious emotional suffering;
• otherwise grossly neglecting family-law duties towards the deceased;
• being sentenced to life imprisonment or twenty years' imprisonment for an intentional offence.

The deceased must have ordered disinheritance expressly or implicitly by omitting the person from the testamentary disposition.

9. Can the compulsory share be reduced by half?

A reduction by half is possible if there was no close family relationship for at least twenty years. The individual circumstances matter; for example, there may be no close relationship if the deceased saw the person only three times in their life. The reduction must be ordered in a testamentary disposition, expressly or implicitly through omission.

Reduction is excluded if the deceased avoided contact without reason or gave justified cause for the lack of contact, for example where a father refused contact with his daughter without her having given him a reason. Here too, personal circumstances are decisive.

10. Waiving a compulsory share or inheritance

A person entitled to a compulsory share may waive it during the deceased's lifetime or in probate proceedings. This often happens when assets are distributed in advance, for example where a child receives a property or apartment in return for a waiver.

The testator may then dispose of assets without that compulsory-share restriction. Unless otherwise agreed, the waiver also applies to the waiving person's descendants. A waiver may prevent disputes or preserve a business intended for one child, where other compulsory-share claims could threaten its continued existence.

A compulsory-share waiver does not remove the person's statutory inheritance right. If there is no testamentary disposition and intestate succession applies, the person may still receive part of the estate.

A waiver of inheritance, by contrast, includes both the compulsory share and statutory inheritance rights. Even then, the testator may still benefit the person in a will, for example by leaving something to a child who waived inheritance rights.

11. Deferral and instalments

The deceased may order deferral or payment by instalments for up to five years in a testamentary disposition. An heir owing the share may also request deferral or instalments for up to five years if immediate payment would cause excessive hardship, for example requiring sale of the home needed to meet an urgent housing need because other assets are insufficient. In particularly deserving cases, deferral may extend to a maximum of ten years.

12. What does litigation cost, and will legal expenses insurance cover it?

Costs depend on the amount in dispute, meaning the compulsory share claimed. Higher claims mean higher litigation costs, consisting of lawyers' fees and court fees. The examples in this article are EUR 1,048.44 for bringing a EUR 17,000 claim plus EUR 743 court fees, and EUR 1,992.36 for a EUR 50,000 claim plus EUR 1,459 court fees. Court fees are payable once, regardless of the duration of proceedings.

If you win, you are entitled to reimbursement of litigation costs by the opponent, including the costs you advanced.

If you have legal expenses insurance, check whether inheritance law is included. If so, it covers the litigation costs under the policy. I can make a free written coverage enquiry to establish whether your particular case is covered.

If you are not yet insured, note that policies often contain waiting periods. Depending on their terms, cover may be refused, for example, if the death occurs one year after the policy was taken out. It is therefore important to arrange cover in good time.

How I can help

As a specialist inheritance lawyer, I advise and represent you in all matters involving inheritance and compulsory shares, including:

• enforcing inheritance rights and defending unjustified claims in contested estates in and out of court;
• estate planning, including purchase and gift agreements, gifts effective on death and waivers of inheritance or compulsory shares;
• drafting, registering and holding your will in safekeeping;
• advice and representation in inheritance partition proceedings — see my article on partition actions;
• calculating your compulsory share and helping prevent inheritance disputes;
• advice on succession and the effects of an acceptance declaration, and representation in probate proceedings.

Free initial assessment — call now

If you have questions or need help enforcing or defending compulsory-share claims, we offer a free initial telephone assessment. Call +43 1 295 4251 or email office@maydell-law.at.

Mag. Patrick Maydell, LL.M.
Attorney at Law
Neustiftgasse 17/1/9
1070 Vienna
Telephone: +43 1 295 4251
office@maydell-law.at