In the will, my sister gets much more, just because she came to family celebrations more often. Is that allowed?
Your co-pilot in inheritance law
Mag. Nevena Shotekova-Zöchling
Attorney in Vienna · 16 years of legal practice · Inheritance law
Parents may be disappointed. That alone does not allow them to disinherit.
Two sisters, one will – and a Christmas phone call
Two sisters. The elder lives in a same-sex partnership. The parents do not approve, and they make her feel it. At some point the elder daughter withdraws. Not out of indifference, but because she does not want to be rejected over and over again.
The younger sister keeps in loose contact. Usually at Christmas: a phone call, a visit.
Then the will says: everything goes to the younger one. The elder is to be disinherited completely. No share, no compulsory share, nothing.
The elder sister comes to us. She does not expect much. “That is what they wanted.”
Parents may be disappointed. But a child’s life choice is not a ground for disinheritance.
The law lists the grounds for disinheritance precisely: serious crimes against the parents, gross breach of family duties and the like. Whom someone shares their life with is not on that list.
And the lack of contact? That did not help the parents either. The law does allow the compulsory share to be halved if, over a long period, there was no closeness of the kind usual between parents and children. But not if the parents themselves gave rise to it. Parents who reject their child because of her partnership cannot later reproach her for having withdrawn.
The disinheritance did not hold. The elder sister received her full compulsory share.
The lesson: a will can distribute a great deal. But it cannot simply strike a child out of the family.
What parents may and may not do
- Distribute unequally: yes. Parents may give one child more than another, for whatever reason.
- Take away the compulsory share: only exceptionally. Every child is entitled at least to the compulsory share: half of the statutory share, in cash (sections 757 et seq. of the Austrian Civil Code, ABGB).
- Disinheritance is only possible on the statutory grounds (section 770 ABGB), for example a serious intentional crime against the parents or a gross breach of family law duties. The heirs must prove the ground. Lifestyle, choice of partner, religion or profession are not grounds.
- Halving the compulsory share because of lack of contact is only possible if, for a long time, there was no closeness of the kind usual between parents and children. This is excluded if the parents refused contact without reason or themselves gave rise to the lack of contact (section 776 ABGB).
What this looks like in figures
A simplified example: estate € 400,000, two daughters, the will leaves everything to the younger one.
- Statutory share of each daughter: half, i.e. € 200,000
- Compulsory share of the elder: half of that, i.e. € 100,000, in cash, payable by the heir
- Had the parents validly halved the compulsory share, it would be only € 50,000. Since the reduction does not hold, it remains € 100,000.
What you should do now
- Register your compulsory share in the probate proceedings and request an inventory so that the value of the estate is established.
- Have the ground for disinheritance checked: what exactly does the will say? Who has to prove what?
- Do not forget gifts: if the favoured sister already received something during the parents’ lifetime, it is added to the compulsory share calculation.
- Observe deadlines: compulsory share claims generally become time-barred three years after you learn of them.
Disinherited or disadvantaged?
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