My father lived in Germany, I live in Austria. Does the German or the Austrian compulsory share apply?
Your co-pilot in inheritance law
Mag. Nevena Shotekova-Zöchling
Attorney in Vienna · 16 years of legal practice · Inheritance law
In Austria the flat would have been lost. In Germany it still counted.
Eight years
The father has lived in Munich for decades, the son in Vienna. Eight years before his death, the father gives his partner a flat. In his will he makes her sole heir. Little else remains.
The son hears from an acquaintance: “Gifts made more than two years ago don’t count.” That is true, under Austrian law and for gifts to someone who is not entitled to a compulsory share themselves. He is close to giving up.
In Austria the flat would have been lost. In Germany it still counted.
The father had his habitual residence in Germany. So German inheritance law applies, also for the son in Vienna. And German law has the supplementary compulsory share claim: gifts made in the last ten years are taken into account, reduced by one tenth for every full year since the gift. After eight years, two tenths of the value of the flat still count.
In the end the son and the partner agree: compulsory share plus supplement, without a lawsuit.
The lesson: first check which law applies. Only then do you know what you are entitled to.
What the law says
- Which law applies: under the EU Succession Regulation, the inheritance law of the state where the deceased last had his habitual residence applies in principle. Where the children live does not matter.
- Exception, choice of law: the deceased may have chosen the law of his nationality in his will. An Austrian citizen living in Germany can therefore choose Austrian law, and vice versa.
- Amount: in both countries the compulsory share is half of the statutory share, and in both it is a monetary claim.
- Gifts, the big difference: in Austria, gifts to persons not entitled to a compulsory share are only taken into account if made in the last two years before death (section 782 ABGB). In Germany, gifts from the last ten years count, reduced by one tenth per year (section 2325 of the German Civil Code, BGB). For gifts to spouses, under German law this period does not begin before the marriage ends.
- Who is entitled: in Germany, parents can also be entitled to a compulsory share if there are no children. In Austria, parents have had no compulsory share since 2017.
- Information: under German law, the person entitled can demand information about the estate from the heir, on request also a notarial inventory of the estate (section 2314 BGB).
- Limitation: in Germany generally three years from the end of the year in which you learned of the death and the disinheritance. In Austria three years from knowledge. Both are short.
What you should do now
- Clarify where the last habitual residence was and whether the will contains a choice of law.
- Demand information: about the estate and about gifts made in the last ten years.
- Have both scenarios calculated if the applicable law is not clear.
- Keep the limitation period in mind.
How the EU Succession Regulation works in principle: My mother lived in Vienna, the house is in Bulgaria, my brother lives in Germany. Who has jurisdiction? →
A succession between Germany and Austria?
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