My sister received a plot of land as a wedding gift 20 years ago. Now Dad has died and we are supposed to split everything “fairly”, 50:50. Is that fair?
Your co-pilot in inheritance law
Mag. Nevena Shotekova-Zöchling
Attorney in Vienna · 16 years of legal practice · Inheritance law
Fair is not what sounds equal. Fair is what ends up equal.
The plot nobody talked about anymore
The mother died years ago. When the daughter marries, her father gives her a plot of land. The family is doing well at the time, and nobody thinks about later.
Twenty years pass. The daughter’s marriage is long over – the land has remained hers. The father, on the other hand, is no longer doing well financially, and his wealth shrinks year after year. When he dies, only a fraction of it is left.
And then the sister says the sentence that sounds so reasonable: “Let’s be fair. Half each.”
The brother senses that something is wrong. He is right.
50:50 is only fair if both received the same. The sister already received her share 20 years ago.
This is exactly what the offsetting of gifts is for. It brings the land back into the calculation – not into the land register, but into the division of the estate.
And this is how it ended: once the sister saw the calculation with the gift offset, “fair 50:50” was quickly off the table. The matter was settled – it did not even need to go to court. The brother received what he was actually entitled to.
The lesson: whoever received gifts earlier has often long since received their share. You just have to request the offsetting.
What this looks like in figures
For illustration, with simplified figures:
- Estate today: € 100,000
- Land given 20 years ago: worth € 120,000 at the time, adjusted for inflation today around € 190,000
Without offsetting – “fair” 50:50
Each receives € 50,000. The sister thus has € 240,000 in total, the brother € 50,000.
With offsetting
- Notional estate: € 100,000 + € 190,000 = € 290,000
- Each child’s share: € 145,000.
- With the land, the sister has already received € 190,000 – more than her share. She receives nothing more from the estate.
- The brother receives the entire € 100,000 – twice as much as with 50:50.
What the law says
- Offsetting against the share of the estate (sections 752 et seq. of the Austrian Civil Code, ABGB): gifts from parents to a child are counted against that child’s share if another child requests it. There is no time limit.
- Valuation: what counts is the value of the gift at the time it was made, adjusted for inflation to the date of death. Whether the land is worth more or less today does not matter.
- The divorce changes nothing. Whether the sister is still married or has since sold the land is irrelevant. What counts is what she received back then.
- Who received the gift? If the land went to the daughter and her husband, only her portion counts. The son-in-law’s half is a gift to a third party – and that is only taken into account if it was made within the last two years before death.
- The exception: the father could expressly waive the offsetting. This must follow from the deed of gift or a testamentary disposition. These documents are the first thing we check.
- If hardly anything is left: if the estate does not even cover the compulsory share, the sister who received the gift may have to pay the shortfall out of what she was given (section 789 ABGB).
What you should do now
- Do not agree hastily. A “fair” 50:50 split is quickly signed – and hard to undo.
- Expressly request the offsetting – in the probate proceedings. It does not happen automatically.
- Gather documents: land register extract (including historical), deed of gift, date of transfer, indications of the value at the time.
Was wealth already distributed in your family during your parents’ lifetime?
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