Marital Home in Inheritance Law

After the death of a spouse, the question often arises as to whether the surviving spouse may remain in the previous home. Austrian inheritance law provides protection for this: According to § 745 ABGB, the surviving spouse has the right to continue living in the marital home and to continue using the household items. This so-called statutory advance legacy secures the previous center of life and prevents the surviving spouse from losing the familiar living environment.

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Marital Home as Part of the Marital Relationship

During a marriage, the marital home serves as the center of the common life. It is the place where the spouses run their household, organize their everyday lives and realize their private life together. According to the law, there is an obligation to live together, whereby separate rooms or work-related places of residence are also permissible. This close connection of the marital home to the marital cohabitation explains why it is given a special protective function in inheritance law – in particular through the statutory advance legacy.

Significance of the Marital Home in Inheritance Law

In inheritance law, the law protects the surviving spouse in particular if the marital home is part of the estate. Spouses are entitled to a so-called statutory advance legacy. This includes the right to continue living in the previous marital home and the authority to continue using the movable objects belonging to the household. It is therefore an independent claim against the estate, which exists independently of the inheritance share.

The advance legacy becomes automatically effective upon the death of the spouse. The surviving spouse therefore does not have to demand or negotiate an additional right of residence. It is a statutory right of use, which serves to maintain the previous living conditions and avoid sudden uprooting.

The right includes all rooms that formed the center of marital life, including common ancillary areas such as garden, balcony or garage. It continues to exist even if the apartment was sole property of the deceased or is part of the estate. A sale or disposal by co-heirs may not impair the right of residence.

From a financial point of view, the advance legacy has maintenance character. It is not reduced proportionally and does not reduce the compulsory portion claims. Even if the estate is not sufficient, the right of residence remains in effect. The claim is only waived in the event of an effective waiver or existing reason for disinheritance.

Marital Home and Life Partners

Statutory Advance Legacy for Life Partners

Inheritance law also takes into account life partners who lived with the deceased in a common household. They are entitled to a temporary advance legacy. This grants the right to continue living in the previous apartment for a period of one year and to continue using the household items, insofar as this is necessary to continue the previous life.

Requirements of the Claim

A prerequisite is that the cohabitation has existed for the last three years before death or longer and that no marriage or partnership of the deceased was still in effect. This is intended to protect a stable personal and economic bond that is comparable to a marriage.

Scope and Limits of the Right

The right of the life partner is limited to one year and does not include a right of ownership, but only a temporary right of use. It ends automatically without the need for termination or a court decision. Nevertheless, the life partner enjoys the same protection against eviction or exploitation as a spouse during this time. This temporary right of residence is intended to enable an orderly reorientation and avoid social hardships immediately after the death.

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Special Issues and Points of Contention

Right of Residence and Ownership

The statutory advance legacy does not establish ownership, but a personal right of residence. This right exists against the estate and the heirs, even if they become the owners of the property. The surviving spouse may continue to use the apartment, but must bear the ongoing costs for operation and maintenance. A transfer of ownership only takes place if it has been expressly ordered by will or contract.

Relationship to Compulsory Portion and Legacies

The advance legacy has compulsory portion character and contributes to the compulsory portion coverage. At the same time, it is not reduced proportionally and enjoys a priority in the sense of the maintenance purpose. The continued residence remains secured, even if the estate is small.

In terms of value, the following applies: The value of the advance legacy is credited to the compulsory portion calculation. The right of use of the marital home remains unaffected by this and cannot be eliminated by compulsory portion claims or other legacies. Only an express waiver or reasons for disinheritance take away the claim.

Reasons for Exclusion and Conflict Situations

The right to continue using the marital home is waived if a divorce decree or dissolution proceedings was already pending during the lifetime of the deceased and the housing situation was legally regulated. Likewise, the surviving spouse loses the right if he/she is unworthy of inheritance or there is a reason for disinheritance. A waiver of the compulsory portion or comprehensive waiver of inheritance can also exclude the advance legacy. In practice, conflicts often arise when co-heirs seek to exploit the property. In such cases, the right of residence must nevertheless be given priority, as it is legally secured and cannot be redeemed without the consent of the entitled party.

Your Benefits with Legal Assistance

Questions regarding the marital home in inheritance law require not only legal knowledge, but also sensitivity in dealing with family and economic interests. Legal support ensures that your right of residence remains secured and that you can assert your claims against the estate, co-heirs or beneficiaries of the compulsory portion in a legally sound manner.

Your advantages at a glance:

• Legally secure clarification of your claim to the statutory advance legacy
• Representation vis-à-vis co-heirs and estate administrators in disputed residential rights issues
• Review and drafting of wills and inheritance contracts to secure the right of residence
• Defense against unjustified exploitation or eviction requests by third parties
• Protection of your interests in the estate proceedings and in court
• Strategic advice on the combination of right of residence, compulsory portion and legacy

With legal support, your marital home remains not only an emotional, but also a legally secured center of life.

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Frequently Asked Questions – FAQ

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