Advance Legacy

The statutory preferential legacy according to § 745 ABGB entitles the surviving spouse or registered partner to continue living in the shared home and to use the movable property belonging to the household after the death of the testator. For life partners, this right applies for a period of one year. The preferential legacy is granted in addition to the inheritance share, regardless of the inheritance quota.

Protection of the Surviving Partner

The statutory preferential legacy particularly protects spouses and registered partners in cases of inheritance. After the death of the testator, the surviving partner remains in the shared home and retains all household effects.

These rights exist independently of the inheritance quota and take precedence over the actual inheritance share. Life partners benefit from the preferential legacy if they have lived in a shared household with the deceased for at least three years and if, at the time of death, the deceased was not married or in a registered partnership. However, a marriage or registered partnership of the life partner themselves does not preclude this. For life partners, the right of use is limited to one year and does not include ownership of the household effects or the home.

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Purpose and Legal Development

The preferential legacy protects the survivor from being displaced from their familiar living environment after the loss of their partner. The legislator ensures that the surviving partner can continue their daily life and remain in their accustomed surroundings. In particular, all household effects remain with the surviving spouse or registered partner.

Household Effects

Household effects include all movable items that serve the continuation of the previous household, such as:

• Furniture and furnishings
• Household appliances
• Crockery and kitchen utensils
• Textiles and everyday items
• Electronic devices for daily use

Generally not considered household effects are:

• Personal belongings of the deceased
• Cash
• Savings books or securities

An exception only applies if such assets were explicitly intended for household management (for example, a “household fund”).

Eligible Persons and Conditions

Spouses and registered partners have a legally guaranteed right to the preferential legacy. This right applies regardless of whether an heir has been appointed, and only ceases in the event of a legally regulated disinheritance. Life partners only receive the preferential legacy if they can prove to have maintained a shared household for at least three years and if, at the time of death, no marriage or registered partnership existed for the deceased, whereby their claim is always time-limited and ends at the latest one year after the death of the testator.

When is there No Statutory Preferential Legacy?

A statutory preferential legacy is not granted to the surviving spouse, registered partner, or life partner if certain grounds for exclusion exist. This is particularly the case if

• a waiver of inheritance or compulsory share has been agreed upon,
• disinheritance or unworthiness to inherit exists,
• the deceased and the surviving spouse have already agreed on the division of marital property and savings in the course of divorce or dissolution proceedings,
• for the life partner, the conditions (three years of shared household, no marriage/registered partnership of the testator at the time of death) are not met.

Furthermore, the preferential legacy is forfeited if a corresponding right of residence is already secured by other special legal provisions (e.g., taking over a tenancy, acquiring ownership of the apartment).

Content and Scope of the Preferential Legacy

The preferential legacy includes the right to reside in the previous home and all household effects. These claims arise automatically upon the death of the testator, without the need for a testamentary disposition. Spouses and registered partners thereby acquire ownership of the household effects and a permanent right of residence. In contrast, life partners only receive a time-limited right of use, so that the home and household effects revert to the heirs after one year.

If the surviving spouse acquires the right to remain in the home due to special legal regulations – for example, by entering into a tenancy or as sole owner – then the preferential legacy recedes, as the claim is already fulfilled otherwise.

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Legal Nature and Special Characteristics

The preferential legacy is a highly personal right and is not transferable. For spouses, this highly personal right ends at the latest with their own death or remarriage, while the right of the life partner mandatorily expires after the statutory year. The preferential legacy can only be revoked from spouses and registered partners through disinheritance. For life partners, the testator’s freedom of testation prevails. A testamentary disposition can exclude the preferential legacy.

The statutory preferential legacy is subordinate to claims of estate creditors. If the estate is over-indebted, creditors may under certain circumstances also access items of the preferential legacy.

Impact on Compulsory Share and Inheritance Division

The value of the right of residence and household effects is credited against the spouse’s compulsory share claim. If this value exceeds the compulsory share, the monetary claim is reduced or forfeited. The remaining heirs divide the remaining estate after deducting the preferential legacy, so that in classic family situations, the home and household effects remain with the surviving partner, and descendants or other heirs receive the remaining assets.

Individual Provisions for Life Partners

Life partners enjoy less protection under inheritance law than spouses or registered partners. Anyone wishing to secure better protection for their partner should make timely provisions through a will or inheritance contract. Without a clear testamentary disposition, only the temporary right of residence and use for one year exists. Only if there are no statutory or testamentary heirs can the life partner receive the estate as an extraordinary heir.

Your Benefits with Legal Assistance

• Clear legal advice prior to an inheritance case
• Enforcement of the Preferential Legacy in Probate Proceedings
• Avoidance of Disputes with Co-heirs
• Clarification of Special Cases (Blended Families, Life Partners)

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Frequently Asked Questions – FAQ