Inheritance contracts in Austria: who can conclude one, what it binds and what it costs

With an inheritance contract, one person promises another their future estate or part of it, and the other person accepts this promise (§ 1249 ABGB). The decisive difference from a will (Testament): a will is a unilateral declaration that the testator can revoke at any time until death. The inheritance contract is a contract. It binds both parties and, as a rule, can only be cancelled jointly.

Under Austrian inheritance law, the inheritance contract is the strongest title to inherit: it takes precedence over a will and over intestate succession (gesetzliche Erbfolge). In practice it is nevertheless rare, because it is open only to a small group of people and requires strict formalities.

An inheritance contract must be executed as a notarial deed (Notariatsakt) – in the presence of two witnesses or a second notary. It must also meet the validity requirements of a testamentary disposition (letztwillige Verfügung). A privately written “inheritance contract”, even if signed by both parties, is invalid as an inheritance contract. At best it can be upheld as a will – but then it is again freely revocable.

The notary registers the inheritance contract in the Austrian Central Register of Wills (Österreichisches Zentrales Testamentsregister). This ensures that it will be found in the probate proceedings (Verlassenschaftsverfahren) after death.

Our role: we advise you, develop the right structure with you, draft the content and align it with your family situation, your assets and, where relevant, foreign law. For the execution as a notarial deed, we work together with a notary.

It is not possible to dispose of the entire estate by contract. An inheritance contract covers at most three quarters of the estate (Verlassenschaft). One quarter must remain available for free testamentary disposition – and “clear”, i.e. free of debts and compulsory shares.

The deceased decides what happens to this free quarter: they can dispose of it in a will – including in favour of the contractual partner. Many couples therefore combine an inheritance contract covering three quarters with a mutual will (wechselseitiges Testament) covering the last quarter. If the deceased has not disposed of the free quarter, it passes to the statutory heirs under intestate succession – not automatically to the contractual heir.

Example: the assets amount to € 800,000, with no debts. At most € 600,000 can be bound by contract. The deceased must be able to dispose freely of € 200,000.

An inheritance contract is tied to the marriage or registered partnership. If the marriage is dissolved or annulled by mutual consent, without fault or with equal fault, the marital agreements (Ehepakte) – and with them the inheritance contract – lapse for both parties, unless otherwise agreed (§ 1266 ABGB). Where a divorce is due to the predominant fault of one party, the innocent party may retain rights.

Our recommendation: set out expressly in the inheritance contract what is to apply in the event of divorce, annulment or separation. This avoids disputes – precisely when the marriage no longer holds.

• Jointly, yes: both contracting parties can cancel or amend the inheritance contract by mutual agreement. The cancellation requires the form of a notarial deed.
• Unilaterally, no: unilateral revocation is excluded. A later will that contradicts the inheritance contract is ineffective to that extent.
• The free quarter: here, each party remains free and can change their will at any time.

“I want my wife to be able to stay in our flat.”

A man has two children from his first marriage and is married for the second time. The owner-occupied flat belongs to him alone. He wants his wife to receive the flat after his death – and wants no one to be able to change this unilaterally later, not even himself under the influence of third parties. An inheritance contract protects the wife. Because the children keep their compulsory share and can claim it in cash, we calculate in advance what amounts the wife could face and examine alternatives such as a waiver of the compulsory share by the children in return for a settlement payment, or a right of residence.

“We built up the business together.”

A married couple runs a business together; a large part of the shares is owned by one partner. An inheritance contract ensures that the surviving partner receives the shares and can continue the business. In addition, the articles of association, succession clauses and the children's compulsory share claims must be aligned with each other – otherwise a compulsory share can put the business at risk.

“We are not married – is it still possible?”

An inheritance contract is not available to cohabiting partners. Since 2017, cohabiting partners do have an extraordinary right of inheritance (außerordentliches Erbrecht) under certain conditions, but it only applies if there are no other statutory heirs. More reliable options are a will, a gift in contemplation of death with a waiver of revocation or – if it fits your life plans – marriage or a registered partnership with an inheritance contract.

In cross-border cases, whether an inheritance contract is effective is determined by the European Succession Regulation (EU-Erbrechtsverordnung). As a rule, the inheritance law of the state in which the deceased last had their habitual residence applies. However, it is possible to choose the law of one's nationality. Particularly for couples of different nationalities or with assets in several countries, the inheritance contract should contain a clear choice of law. We clarify the legal position abroad through our partner law firms on site. See also our article for heirs living abroad.

An inheritance contract involves two cost items: the advice and drafting of the contract, and the costs of notarial execution. Notary fees are based on the notarial tariff (Notariatstarif) and depend on the value of the assets. We give you a binding price for our services in advance and obtain the notary's quote for you – no surprises.