My father’s new partner was given a flat shortly before his death. Is that allowed?
Your co-pilot in inheritance law
Mag. Nevena Shotekova-Zöchling
Attorney in Vienna · 16 years of legal practice · Inheritance law
Gratitude is a fine thing. But it has a price – and the child does not automatically pay it.
First: wife or cohabiting partner?
This one question decides almost everything.
- If she was his wife (or registered partner), she is herself entitled to a compulsory share. Gifts to her are counted without any time limit – just like gifts to children. At the same time, she inherits one third alongside the children and receives the right to live in the marital home together with the household contents.
- If she was his cohabiting partner, she is a third party under inheritance law. She has practically no statutory right to inherit. In return, gifts to her only count towards the children’s compulsory share if they were made in the last two years before death. But then they count in full.
“Out of gratitude for the wonderful time”
The father is seriously ill. In his last months, his cohabiting partner takes care of him. Shortly before his death, he gives her his flat – “out of gratitude for the care and the wonderful time together”. That is what the contract says.
When he dies, hardly anything of his wealth is left. The flat was practically everything. His daughter faces an empty estate – and a sentence that sounds like a full stop: “He gave it to her. That was his wish.”
The daughter comes to us.
Gratitude is a fine motive. But it is no reason to wipe out a child’s compulsory share.
The gift was made within the last two years before death. So when calculating the compulsory share, the flat is treated as if it were still part of the estate. And because there was nothing left in the estate itself to pay the compulsory share, the claim was directed against the person who received the gift.
And the “care”? Care can be compensated – but only at its actual value. An entire flat for a few months of care goes far beyond that. Whatever exceeds fair compensation remains a gift.
The daughter was proved right: the other side gave in, and the matter was settled.
The lesson: “He gave it to her” is not the end of the story. With gifts made shortly before death, a second look almost always pays off.
What the law says
- Gifts to third parties – including cohabiting partners – are added to the estate for calculating the compulsory share if they were made in the last two years before death (section 782 of the Austrian Civil Code, ABGB).
- Gifts to persons entitled to a compulsory share – children, spouses, registered partners – are added without any time limit.
- If the estate is insufficient, the person who received the gift must pay the shortfall – up to the value of the gift at most (section 789 ABGB).
- “Out of gratitude” or “for the care”: only smaller gifts made out of decency or moral obligation are not added (section 784 ABGB). A flat as a rule does not fall into this category. Genuine care can be compensated, but only at its reasonable value.
- The cohabiting partner herself has her own, limited rights: if she cared for the deceased, she may be entitled to a care legacy. And if she lived with him for at least three years, she may stay in the shared home for one more year.
What you should do now
- Check the date: when exactly was the gift made? For cohabiting partners, the two-year limit is decisive. We review the contract and the land register.
- Register your compulsory share in the probate proceedings and expressly request that the gift be added.
- Observe deadlines: compulsory share claims generally become time-barred three years after you learn of them – separate deadlines may apply against the person who received the gift. Do not wait.
Were assets given away shortly before death?
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