My husband died before his parents. Now his parents have died. Does our child get anything?
Your co-pilot in inheritance law
Mag. Nevena Shotekova-Zöchling
Attorney in Vienna · 16 years of legal practice · Inheritance law
You may dislike a daughter-in-law. That is no reason to disinherit a grandchild.
Reasons that were no reasons
A son dies before his parents. He leaves behind his wife and a child. His parents never liked their daughter-in-law. Grief does not change that.
Then the grandparents die. The will says: the grandchild is disinherited completely. With reasons that sound serious at first glance – carefully worded and dressed up in legal language.
The mother comes to us with her child. She knows the reasons are not true. She also knows what this is really about.
The disinheritance was not about the child. It was about the dislike of the child’s mother.
The law only allows disinheritance on very specific grounds – and it always depends on the conduct of the person being disinherited. The child had done nothing to the grandparents. The pretextual reasons did not withstand scrutiny. What remained was the dislike of the daughter-in-law – and that is not a ground for disinheritance.
The family would not accept this. We challenged the will and enforced the claim in court. In the end there was a settlement: the child received their share – the share their father would have been entitled to.
The lesson: a will can settle a great deal. Fighting family feuds at a child’s expense is not one of them.
What the law says
- Right of representation: if a child died before their parents, that child’s own children take their place. They inherit the share their parent would have received (section 732 of the Austrian Civil Code, ABGB).
- Compulsory share for grandchildren: grandchildren whose parent died first are also entitled to a compulsory share – half of what they would inherit by law.
- Disinheritance only on statutory grounds (section 770 ABGB), for example a serious crime against the grandparents or a gross breach of family law duties. The ground must lie in the person being disinherited and must be proven by the heirs. A dispute with one of the child’s parents does not count.
- If the child is a minor, the surviving parent represents them. A settlement about the inheritance then often requires the approval of the guardianship court – which protects the child and gives the agreement additional certainty.
What this looks like in figures
A simplified example: the grandparents leave € 300,000. They had two children: a daughter who is still alive and a son who died first, leaving a child.
- Without a will: the daughter inherits € 150,000. The grandchild takes their father’s place and also inherits € 150,000.
- With a will leaving everything to the daughter: the grandchild is still entitled to the compulsory share – € 75,000.
- If the disinheritance does not hold, the € 75,000 remains in any case; if the will falls entirely, it is even € 150,000.
What you should do now
- Register the child in the probate proceedings – with the court commissioner, i.e. the notary conducting the proceedings.
- Have the will and the grounds for disinheritance checked. Do they sound constructed? Do they concern the child at all?
- Gather what shows the real motives: messages, letters, witnesses. The history often explains more than the will.
- Observe deadlines: compulsory share claims generally become time-barred three years after one learns of them. Special rules apply to minors – but do not rely on them.
Was your child passed over in the grandparents’ estate?
We check what your child is entitled to – and enforce it. Initial assessment within 48 hours on working days; the first consultation is free of charge.
Check the child’s claim+43 1 34 601 71