Care bequest
Care bequest
The care legacy is a legally regulated financial contribution for legal heirs who have regularly and extensively provided unpaid care to the deceased in the last three years of their life.
The care legacy was introduced with the Inheritance Law Amendment Act 2015. It is anchored in §§ 677 and 678 of the General Civil Code (ABGB).
Peter HarlanderHarlander & Partner Rechtsanwälte „Wenn der Verstorbene Pflege von einem Angehörigen bezogen hat, ist eine Prüfung ratsam, prüfen zu lassen, ob ein Pflegevermächtnis in Betracht kommt.“
Requirements for the Care Legacy
There are five requirements that must be met in order to be entitled to a care legacy:
Care by a Close Person
The caregiver must be among the legal heirs for a claim to exist. This includes, among others:
- the spouse
- the registered partner
- the children and their descendants, i.e. the grandchildren, great-grandchildren, etc.
- the parents and their descendants
- the grandparents or their descendants
- the great-grandparents.
The Care Was Provided in the Last Three Years before Death
The care must have taken place within the last three years before the death of the deceased. It is not crucial that it was provided continuously, but that it took place regularly and to a relevant extent.
Not just to a Minor Extent
The caregiver must have cared for the testator for a period of at least six months and provided an average of more than 20 hours of care services per month.
Free of Charge
Anyone who has already agreed with the testator on a donation or payment for the care cannot claim a care legacy.
Sebastian RiedlmairHarlander & Partner Attorneys „Zusammenfassend belohnt das Pflegevermächtnis nahe Verwandte für die intensive Pflege des Erblassers.“
Amount of the Care Legacy
The amount of the care legacy depends on:
- Type of care
- the duration of care
- and the scope of care provided
However, the specific design always depends on the individual case. The minimum wage rates for people working in the household can be used as a guide. A precise determination of the amount of the claim is made at the discretion of the court.
Payment of the Care Legacy
Whether the care legacy must be paid by the estate or by the heir depends on the time of assertion. If the claim is raised before the inheritance is transferred, the estate itself is liable for payment – i.e. the assets that the deceased left behind.
However, if the inheritance has already been transferred to a specific person, i.e. the assets have been legally transferred to them, the claim is directed against this person as heir. In certain cases, the heir may even have to pay the care legacy from their own assets, especially if the claim was not taken into account in the estate proceedings.
How is the Care Legacy Claimed?
First, the responsible notary as court commissioner is obliged to try to reach an agreement between the caregiver and the potential heirs. If this is not successful, the claim can be enforced in court.
However, the limitation periods must be observed.
In some cases, there is still the possibility of asserting so-called claims under the law of unjust enrichment if care services were provided without consideration. However, other legal bases apply to this, which must be examined separately.
Choose your prefered dateBook free initial consultationLimitation Periods
The claim becomes statute-barred after three years from knowledge of the requirements of the claim and after 30 years after the death of the testator. You should therefore assert your claim within the first 3 years.
Can the Care Legacy Claim be Withdrawn?
The care legacy can only be withdrawn by the testator if there is a reason for disinheritance under §§ 770f ABGB. The care legacy can also be withdrawn in the event of unworthiness to inherit.
What should You Do if You Believe You are Entitled to a Care Legacy?
If you have cared for a close person for a long period of time and a death has now occurred, you should act quickly. The claim to a care legacy can become statute-barred if it is not asserted.
Our Recommendation:
- Seek advice in good time – preferably before the inheritance is transferred.
- Collect evidence of your care services (e.g. calendar notes, witness statements, photos).
- Have it checked whether a will influences the situation.
As an experienced law firm in the field of inheritance law, we advise you competently and with empathy. We clarify your claims, help with communication with co-heirs and, if necessary, also represent you in court.
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