Disinheritance

Disinheritance

Disinheritance means that a forced heir loses their claim to the forced share, either entirely or partially. This deprivation occurs exclusively through a testamentary disposition and is only effective if a statutory ground for disinheritance exists. Disinheritance can be express or, in certain cases, tacit, through deliberate omission. It applies exclusively to the specifically named person. Descendants remain entitled to their forced share, unless a separate ground for disinheritance also exists against them.

Disinheritance is the deprivation of the forced share by will when statutory grounds exist. It must be formally valid and well-founded.

Forced Heirship Beneficiaries

Exclusively entitled to a forced share are:

• descendants (children, grandchildren, etc.) and
• the spouse or registered partner.

Parents and siblings are no longer considered forced heirship beneficiaries since the 2017 inheritance law reform. The forced share is a monetary claim against the heirs and not a claim to specific assets.

Requirements for Effective Disinheritance

Disinheritance is only valid if:

1. a formally valid testamentary disposition (will or inheritance contract) exists,
2. a legally recognized ground for disinheritance is present, and
3. this ground was causal for the disinheritance.

Even if the law does not strictly require stating the reason, a clear justification is recommended. This is because only a verifiable reason supports a disinheritance in court.

Sebastian Riedlmair
Harlander & Partner Attorneys „In der Praxis scheitern Enterbungen oft nicht am Grund, sondern an der unklaren Formulierung. Wer wirksam enterben will, muss sauber arbeiten.“

Statutory Grounds for Disinheritance

The law lists the grounds for disinheritance exhaustively. These include:

• Serious offenses against the testator (e.g., bodily harm, fraud (only intentional offenses with a penalty exceeding one year))
• Similar offenses against close relatives (e.g., spouse, children, life partner)
• Frustration or manipulation of the last will
• Reprehensible infliction of severe emotional distress
• Gross neglect of family law obligations
• Conviction to life imprisonment or a 20-year prison sentence

A mere family conflict or cessation of contact is not sufficient. The law requires particularly serious conduct.

Disinheritance for Good Cause

The forced share can also be withdrawn if the testator fears that a spendthrift lifestyle of the forced heir would harm their descendants. In this case, the forced share must be passed directly to their children. If no children exist at the time of inheritance, this disinheritance is ineffective.

Peter Harlander
Harlander & Partner Rechtsanwälte „Die Enterbung in guter Absicht ist keine Strafe. Sondern ein Schutzinstrument für nachfolgende Generationen.“

Tacit Disinheritance by Omission

Disinheritance can also occur through deliberate non-consideration in a testamentary disposition. This tacit disinheritance is only valid if a statutory ground for disinheritance actually exists. If this is missing, the omission is considered a “reduction to the forced share”.

Erroneous Omission

If the testator was unaware of the existence of a child entitled to a forced share, a legal presumption applies: they intended to grant this child at least the minimum share. If this child was the only one, statutory succession applies in case of doubt.

Burden of Proof and Causality

The burden of proof for the ground of disinheritance lies with the forced share debtor, usually the heir. The law presumes that a proven ground was also causal for the disinheritance. This presumption applies to both express and tacit disinheritance.

Consequences of Effective Disinheritance

• The claim to the forced share is entirely or partially forfeited.
• The disinherited person nevertheless remains capable of inheriting if they were named as an heir in the will.
• Descendants of the disinherited person retain their claim to the forced share, unless they are also disinherited.
• A claim for necessary maintenance against the estate remains.

Revocation and Forgiveness

The testator can revoke the disinheritance by:

• express revocation (formally valid disposition),
• tacit revocation (e.g., subsequent gift to the disinherited person), or
• forgiveness, if a new disposition is no longer possible (e.g., due to lack of testamentary capacity). It is crucial that the testator’s conduct clearly indicates that they no longer wish to uphold the disinheritance.

Practical Examples

• Anyone who defrauds, abuses, or forces the testator to change their will generally meets the requirements for disinheritance or even unworthiness to inherit.
• If the forced share is withdrawn out of concern for the children of the disinherited person and passed on to them, this constitutes disinheritance for good cause.

Recommendations for Testators

• Seek legal advice before arranging a disinheritance.
• Document incidents and securely store evidence.
• Ensure a clear justification in the will.
• Check if a reduction of the forced share is sufficient.

Recommendations for Disinherited Persons

• Question the alleged ground for disinheritance.
• Verify the formal validity of the disposition.
• Secure exculpatory evidence.
• Observe challenge and assertion deadlines.
• Have your claim to a forced share or maintenance legally reviewed.

Your Benefits with Legal Assistance

Disinheritance clauses are among the most legally sensitive areas of Austrian inheritance law. Even minor formal errors or unclear wording can render the disinheritance ineffective. Our firm assists you in structuring a disinheritance to be legally sound, comprehensible, and defensible in court.

Specifically, we offer you:

• Legally sound drafting of your disinheritance: We verify whether a statutory ground actually exists and draft the necessary provisions in a formally valid testamentary disposition.
• Review and challenge of a disinheritance: If you have been disinherited, we clarify whether the reason is justified and represent your interests in the forced share proceedings.
• Strategic planning with alternatives: Disinheritance is not always the best solution. We show you alternatives such as reduction of the forced share, gifts, or legacies.
• Safeguarding through documentation: We help you securely document evidence for the ground of disinheritance and store it in a will depository.

Rely on profound expertise and many years of experience in Austrian inheritance law. We accompany you from initial consultation to implementation or judicial enforcement of your goals.

Frequently Asked Questions – FAQ