Spouse Inheritance Rights in Austria After Death, Statutory Share, Pflichtteil, Household Items & Timelines

When a husband, wife, or registered partner dies in Austria, the surviving spouse holds a protected legal position that cannot be entirely overridden, even by a will. Understanding spouse inheritance rights in Austria after death requires familiarity with three distinct entitlements: the legal share under intestacy (gesetzlicher Erbteil), the compulsory portion if the spouse has been disinherited or under-provided for (Pflichtteil), and the statutory right to remain in the matrimonial home and retain household items. Austrian inheritance rules are governed primarily by the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB), with estate proceedings supervised by district courts and, in practice, handled largely through court-appointed notaries (Gerichtskommissäre).

This guide explains what a surviving spouse is entitled to, how to calculate and claim each entitlement, the documents required, and realistic timelines from death to receipt of an inheritance share.

At a Glance, Key Facts for Surviving Spouses

• Legal share on intestacy: A surviving spouse typically receives one-third of the estate if the deceased left children, or two-thirds if only the deceased’s parents (or their descendants) survive, as provided under the ABGB.
• Compulsory portion (Pflichtteil): Even where a will attempts to exclude the spouse, the Pflichtteil guarantees a monetary claim equal to half of the legal share that would have applied on intestacy.
• Household items & matrimonial home: The surviving spouse has a statutory right to retain household items used during the marriage and, in many cases, a right to continue living in the shared home, separate from the inheritance share itself.
• Timelines: Simple, uncontested estates can be settled within a few months. Complex or disputed estates, particularly where Pflichtteil claims arise, regularly take a year or longer.

Who Inherits Under Austrian Law, the Spouse’s Place in the Order

Austrian intestate succession follows a parentelic (line-based) system set out in the ABGB. Rather than a single ranked list of heirs, the law groups potential heirs into parenteles, lines of descent radiating from the deceased, and a surviving spouse holds a special cross-cutting position that interacts with whichever parentele contains living heirs.

Intestate Succession, Order of Heirs

Under the ABGB’s parentelic system, the first line (erste Linie) comprises the deceased’s children and their descendants. The second line consists of the deceased’s parents and their descendants (i.e., the deceased’s siblings, nieces, and nephews). The third line includes grandparents and their descendants. A surviving spouse does not belong to any parentele but instead receives a fixed fraction that varies depending on which line contains living heirs:

• First line active (children survive): The spouse receives one-third; the children share the remaining two-thirds equally.
• Second line active (no children, but parents or siblings survive): The spouse receives two-thirds; the parents (or their descendants) share the remaining one-third.
• No heirs in the first or second line: The spouse inherits the entire estate.

This system means a surviving spouse always inherits alongside, or instead of, blood relatives, depending on who else is alive at the time of death.

Registered Partners vs Cohabitants vs Spouses, Legal Distinctions

Austrian law draws sharp distinctions between three categories of partner. Married spouses enjoy the full range of inheritance rights described in this article, including the legal share, Pflichtteil, household-item entitlement, and the right to occupy the matrimonial home. Registered partners (eingetragene Partner) under the Registered Partnership Act (Eingetragene Partnerschaft-Gesetz, EPG) hold inheritance rights that are, in practice, equivalent to those of married spouses, they fall into the same statutory provisions for legal share and Pflichtteil.

Unmarried cohabitants (Lebensgefährten), by contrast, have very limited statutory inheritance rights. Since a 2017 reform, a surviving cohabitant may receive a one-year right to continue living in the shared home if they had lived there with the deceased for at least three years before death, but they do not receive a legal share, a Pflichtteil, or an entitlement to household items unless the deceased provided for them by will or legacy. This critical distinction makes legal status a decisive factor in spouse inheritance rights in Austria after death.

Legal Share vs Compulsory Portion (Pflichtteil), What Is the Difference?

Two concepts sit at the heart of Austrian inheritance law, and they are frequently confused. The legal share (gesetzlicher Erbteil) is what a spouse receives under intestacy. The Pflichtteil (compulsory portion) is a safety net: a monetary minimum that close family members, including spouses, can claim even when a will attempts to reduce or exclude their inheritance.

Statutory Share in Austria, Examples by Heir Constellation

The size of the surviving spouse’s legal share depends entirely on which other heirs exist. The ABGB sets out the following framework:

• Spouse + descendants (children, grandchildren): The spouse takes one-third of the estate. All descendants share the remaining two-thirds equally (per stirpes, meaning a predeceased child’s share passes to that child’s own children).
• Spouse + parents (no descendants): The spouse receives two-thirds. The deceased’s parents share one-third equally. If one parent has predeceased, that parent’s share passes to their descendants (siblings of the deceased). If both parents have predeceased and left no descendants, their share accrues to the spouse.
• Spouse alone (no descendants, no parents, no siblings): The spouse inherits the entire estate.

These fractions apply only where the deceased left no valid will, or where the will does not dispose of the full estate.

Pflichtteil (Compulsory Portion) for a Spouse in Austria, How It Is Calculated

The Pflichtteil exists to prevent complete disinheritance of close family members. Under the ABGB, those entitled to a compulsory portion include the deceased’s children (and their descendants) and the surviving spouse or registered partner. The Pflichtteil equals one-half of the value of the legal share that the entitled person would have received on intestacy. It is a monetary claim against the estate, not a right to specific assets.

To calculate it, you first determine the legal share as if the deceased had died intestate. You then halve that figure. The Pflichtteil is calculated on the estate’s net value at the date of death, after deducting liabilities. Certain lifetime gifts made by the deceased may also be added back into the calculation base under the Pflichtteil augmentation rules (Pflichtteilsanrechnung / Hinzurechnung), which prevents the deceased from depleting the estate through strategic gifting.

Industry observers note that Pflichtteil disputes are among the most litigated inheritance issues in Austrian courts, particularly where significant lifetime gifts have been made or where estate valuations are contested.

Spouse Inheritance Rights in Austria After Death, Comparison Table

Matrimonial Home and Household Items, Spouse Rights to Remain and Occupy

Beyond the inheritance share itself, Austrian law gives surviving spouses two additional, distinct entitlements that exist independently of the estate distribution. These rights ensure basic continuity of living conditions during what is often the most difficult period following a death.

Right to Remain in the Matrimonial Home, Conditions and Duration

A surviving spouse (or registered partner) has a statutory right to continue living in the dwelling they shared with the deceased, the gesetzliches Vorausvermächtnis (statutory advance legacy) under the ABGB. This is not merely a temporary grace period but a legal entitlement that can, depending on circumstances, last for the spouse’s lifetime. The right applies if the dwelling was used as the shared marital home. It operates as a usufruct-like entitlement: the spouse may occupy and use the home even if legal ownership passes to other heirs. This right takes priority and is deducted from or set off against the spouse’s inheritance share only where specifically provided.

Household Items and Personal Effects, What Is Typically Included

The statutory advance legacy also covers household items (Haushaltsgegenstände) that the couple used during the marriage. This typically includes furniture, kitchen equipment, bedding, appliances, and everyday personal effects. It does not normally extend to luxury items, investment assets, or business equipment. The surviving spouse is entitled to retain these household items in addition to their inheritance share, reinforcing the principle that a surviving spouse should not be forced from their home or stripped of the basic necessities of daily life.

To assert these rights, a spouse should present the marriage certificate, proof of shared residence (e.g., registration confirmation or Meldezettel), and an inventory of the household items in question. Early documentation is essential, once estate proceedings are under way, contested items may be valued and disputed.

How to Claim a Spouse’s Share and Pflichtteil, Step-by-Step and Timelines

Austrian probate proceedings (Verlassenschaftsverfahren) are initiated automatically by the court upon notification of a death. A court-appointed notary (Gerichtskommissär) manages the process. However, a surviving spouse should take active steps to protect and enforce their inheritance rights in Austria after death of a partner.

Step 1, Locating the Will and Identifying Assets

The court-appointed notary will search the Austrian Central Register of Wills (Österreichisches Zentrales Testamentsregister) for any registered will. The surviving spouse should also gather:

• Death certificate and marriage or registered-partnership certificate
• Any known wills, codicils, or inheritance agreements
• Bank and financial statements, current accounts, savings, investment portfolios
• Property deeds and land register (Grundbuch) extracts
• Insurance policies, life insurance, pension entitlements
• Debts and liabilities, loan agreements, guarantees

Step 2, Valuation and Calculation

All estate assets must be valued at their fair market value as of the date of death. Where real estate is involved, a sworn court expert (gerichtlich beeideter Sachverständiger) may be appointed. For Pflichtteil purposes, lifetime gifts made by the deceased within the relevant look-back period must also be assessed and potentially added to the calculation base. The notary prepares an inventory, and the spouse should verify that all assets, including those not immediately apparent, such as foreign bank accounts or digital assets, are captured.

Step 3, Formal Claim and Deadlines

Within probate proceedings, the surviving spouse declares whether they accept or disclaim the inheritance. If the spouse has been left less than their legal share by will, or excluded entirely, they should formally assert their Pflichtteil claim. This is done through the probate proceedings or, if necessary, by filing a separate civil action.

Under the ABGB, the limitation period for Pflichtteil claims is three years. This period typically begins to run from the date the entitled person gains knowledge of the death and of the relevant testamentary disposition. In practice, acting promptly is critical, delays can complicate asset tracing, and once the limitation period expires, the claim is lost. If the estate includes assets that were gifted during the deceased’s lifetime, augmentation claims for these gifts may be subject to a separate tiered reduction depending on how long before death they were made.

The likely practical effect for most surviving spouses is that the entire process, from death to final distribution, takes between three and twelve months for a straightforward estate. Contested Pflichtteil claims, disputed valuations, or cross-border asset tracing can extend proceedings well beyond a year.

What About Debts, Can a Spouse Refuse or Accept an Inheritance?

Austrian law does not force anyone to accept an inheritance. A surviving spouse may choose between three options:

• Unconditional acceptance (unbedingte Erbantrittserklärung): The spouse becomes fully liable for all estate debts, even if they exceed the value of the assets.
• Conditional acceptance (bedingte Erbantrittserklärung): The spouse’s liability for debts is limited to the value of the inherited assets. This requires a formal inventory of the estate.
• Renunciation (Erbverzicht / Ausschlagung): The spouse declines the inheritance entirely and takes on no liability for debts, but also forfeits the inheritance share.

Choosing conditional acceptance is typically the safest route where the full extent of the deceased’s liabilities is unclear. It preserves the inheritance while capping debt exposure. A Pflichtteil claim is a monetary claim against the estate rather than an acceptance of the inheritance itself, but a spouse asserting a Pflichtteil will still only receive payment after estate debts are satisfied.

Cross-Border Issues, Non-Resident Spouses and EU Succession Rules

Where the deceased had connections to more than one country, for example, an Austrian citizen living abroad or a non-Austrian dying while resident in Austria, the EU Succession Regulation (Regulation (EU) No 650/2012, commonly known as “Brussels IV”) determines which country’s law governs the succession. As a default rule, the applicable law is that of the country where the deceased had their habitual residence at the time of death.

However, the Regulation allows a testator to choose the law of their nationality to govern their succession, provided this choice is recorded in the will. This means a French national living in Austria could elect French law, or an Austrian living in Germany could elect Austrian law. The European Certificate of Succession (Europäisches Nachlasszeugnis) facilitates cross-border recognition of inheritance rights throughout EU member states.

For surviving spouses with a cross-border dimension to their case, early legal advice is essential to determine which law applies and to ensure rights are protected in all relevant jurisdictions. The European e-Justice Portal provides country-specific succession guidance for each EU member state.

Practical Examples, Sample Pflichtteil Calculations

The following table illustrates how the compulsory portion is calculated for a surviving spouse in three common scenarios, assuming a net estate value of €300,000.

In the first scenario, if the deceased’s will left the entire estate to the two children and nothing to the spouse, the spouse could assert a Pflichtteil claim of €50,000, a cash payment from the estate. In the second scenario, if only a distant charity was named as heir, the spouse’s Pflichtteil would be €150,000. These figures assume no relevant lifetime gifts and no debts; in practice, the calculation base may be adjusted for both.

Next Steps, Checklist and Documents

If you are a surviving spouse preparing to assert your inheritance rights in Austria after death of your partner, gather the following documents as soon as practicable:

• Death certificate (Sterbeurkunde)
• Marriage certificate or registered-partnership certificate
• Valid identification (passport or national ID)
• Any known wills, codicils, or inheritance contracts
• Complete asset inventory, bank accounts, real estate, vehicles, investments, business interests
• Property valuations, recent appraisals or land register extracts
• Proof of shared residence, Meldezettel, utility bills, or rental/ownership documents
• Debt documentation, loans, credit card statements, guarantees
• Insurance policies, life insurance, pension fund statements
• Correspondence sent by registered mail documenting any Pflichtteil claim or notice to the estate

Organising these materials before the court-appointed notary begins the formal inventory accelerates the probate process and helps ensure no assets are overlooked.

When to Seek Legal Help

While simple, uncontested estates can often proceed smoothly through the notarial process, legal advice becomes essential when a will reduces or excludes the surviving spouse, when the estate includes cross-border assets, when significant lifetime gifts may affect the Pflichtteil, or when the estate is potentially insolvent. Acting early protects both claim deadlines and asset valuations, and professional guidance can prevent costly mistakes that are difficult to reverse once probate concludes.

Sources

1. RIS, Rechtsinformationssystem des Bundes (Austrian Civil Code, ABGB)
2. Österreich.gv.at, Official Austrian Government Guidance on Inheritance
3. European e-Justice Portal, Succession in Austria
4. Austrian Federal Ministry of Justice (Bundesministerium für Justiz)
5. Austrian Notaries (Österreichische Notariatskammer)