Compulsory Portion Action

Compulsory Portion Action

The compulsory portion action is the legal means to claim the statutory compulsory portion if it is not paid out due to a will or the conduct of the heirs. In Austria, close relatives such as children and the spouse are entitled to a compulsory portion even in the event of disinheritance. If this claim is denied or ignored, the only option often remaining is to go to court.

In Austria, close relatives such as children and the spouse are entitled to a compulsory portion even in the event of disinheritance. If this claim is denied or ignored, the only option often remaining is to go to court.

All important information about the compulsory portion action in Austria: requirements, deadlines, entitled parties, and the process of suing for the compulsory portion.

Requirement for the Compulsory Portion Action

The action requires:

Reasons for Filing a Compulsory Portion Action

An action to enforce the compulsory portion becomes necessary if:

  • the compulsory portion is not voluntarily paid out despite request,
  • there is uncertainty or dispute about the amount of the claim,
  • parts of the estate are deliberately concealed or withheld,
  • the compulsory portion claimant was disregarded due to an unlawful disinheritance.
Attorney Sebastian Riedlmair Sebastian Riedlmair
Harlander & Partner Attorneys „In all diesen Fällen empfiehlt sich die rasche rechtliche Abklärung, um drohende Fristversäumnisse zu vermeiden und den Anspruch ordnungsgemäß durchzusetzen.“

Process of Enforcing Compulsory Portion Claims

The enforcement of a compulsory portion claim usually begins with an extrajudicial request to the heirs for payment. If this is unsuccessful or there is a dispute about the amount of the claim, the legal route follows. The action must be brought before the competent civil court.

In the proceedings, the estate is determined, supplemented or reviewed if necessary. The eligibility and the compulsory portion quota are determined. The court decides on the basis of the evidence presented on the amount of the claim and orders the heirs to pay, provided the claim is justified.

Suing for and Receiving Payment of the Compulsory Portion

If the compulsory portion is not paid voluntarily, it can be claimed in court. The action aims at payment of a certain amount of money. If the claim is undisputed in principle, an action can also be brought only on the amount of payment.

After a positive judgment, the heirs have to pay the awarded amount. If no payment is made, the compulsory portion claimant can initiate the execution – for example, by garnishing salary or accessing the account.

Assessment Basis and Type of Claim

The compulsory portion is a pure monetary claim and is measured at half of the statutory inheritance. The basis of calculation is the so-called net estate. The net estate is the assets of the deceased minus the debts.

The estate includes in particular:

Effects of Gifts and Legacies

Gifts that the deceased made during his lifetime can significantly influence the compulsory portion claim. If, for example, real estate, larger amounts of money or company shares are given away, this increases the fictitious estate, which is to be used for the calculation of the compulsory portion.

In such cases, an additional claim for compulsory portion supplementation may exist. This applies in particular if the donee himself was appointed as heir. Legacies, on the other hand, are not statutory inheritances, but concrete allocations of certain assets. They reduce the actually available estate and can therefore indirectly reduce the compulsory portion.

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How Do I Enforce My Claim to the Compulsory Portion?

If you, as a person entitled to a compulsory portion, want to secure your claim, you should first try an extrajudicial enforcement. In a first step, the heir or heirs are requested in writing to calculate and pay out the compulsory portion. If an agreement cannot be reached, the claim can be enforced by action before the civil court.

The court then examines whether the claim exists, how high the compulsory portion is and whether any gifts or legacies are to be taken into account. If the court grants the request for action, the heirs pay the compulsory portion on the basis of the judgment. If they still do not make a payment, the compulsory portion claimant initiates the execution.

For a legally secure and complete enforcement, legal support is recommended, especially in the case of complex estate circumstances or concealed assets.

Attorney Sebastian Riedlmair Sebastian Riedlmair
Harlander & Partner Attorneys „Wer seinen Pflichtteil sichern will, muss frühzeitig handeln und sich nicht auf mündliche Zusagen verlassen. Dies gilt besonders dann, wenn Spannungen zwischen den Erben bestehen.“

Due Date of the Compulsory Portion Claim

The compulsory portion claim arises with the death of the deceased person. From this point on, there is basically a claim for payment.

Compulsory portion claimants may demand the payment of the monetary compulsory portion only one year after the death, as expressly provided by law. This period is intended to enable the heirs or other persons liable for payment to arrange the estate and provide the necessary funds.

After this year has expired, the compulsory portion can be claimed and, if necessary, enforced in court.

In addition, the payment can be postponed beyond this period or made in installments in certain cases. This can be done either by a testamentary disposition of the deceased or on application of the person liable for payment to the court. A prerequisite for this is always that the deferral is reasonable. The court examines in particular the economic circumstances of the parties involved and the fairness of the regulation.

Statute of Limitations for the Compulsory Portion Claim

The claim to the compulsory portion is generally subject to a statute of limitations of three years. The period begins as soon as the compulsory portion claimant learns of the death, a possible disinheritance and the extent of the estate, or could have learned of it with due diligence.

In addition, there is an absolute limitation period of 30 years, which begins to run with the death of the deceased person. After this period has expired, the compulsory portion claimant can no longer assert his claim.

Costs

The costs for the enforcement of a compulsory portion claim are made up of several components. These include in particular court fees, attorney’s fees and, under certain circumstances, expenses for experts, for example in the valuation of real estate or company shares.

The amount of these costs depends on the so-called value in dispute. This refers to the amount of money that the compulsory portion claimant is suing for. The higher the claim, the higher the procedural costs.

Your Benefits with Legal Assistance

  • Examination of whether an action is necessary or useful
  • Avoidance of missed deadlines
  • Enforcement of the compulsory portion
  • Disclosure of concealed assets
  • Negotiating power through well-founded legal argumentation
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Frequently Asked Questions – FAQ