Reduction of the Compulsory Portion

Reduction of the Compulsory Portion

The reduction of the forced heirship share allows the legal forced heirship share of close relatives such as children or spouses to be reduced by half. This is provided that the family relationship was completely broken for years or did not exist at all. This instrument serves to consider long-standing estrangements in the will and is found in § 776 ABGB.

In the case of a reduction of the forced heirship share, the legal claim of a close relative is reduced by half if no personal close relationship with the testator existed for a long time.

Persons entitled to a forced heirship share, i.e., descendants, spouse, or registered partner, generally have a claim to a portion of the estate. However, if the deceased did not maintain a personal relationship with this person for a longer period, they can reduce the forced heirship share by half through a testamentary disposition.

This reduction must either be expressly stated in the will or can be declared tacitly by consciously passing over the person concerned.

Peter Harlander
Harlander & Partner Rechtsanwälte „Die Pflichtteilsminderung ist kein Instrument der Bestrafung, sondern ein juristisches Mittel zur Wahrung familiärer Realität. Ihre Anwendung verlangt jedoch Fingerspitzengefühl.“

Requirements for the Reduction

A reduction of the forced heirship share is only effective if all legal criteria are met:

• There is a valid testamentary disposition, such as a will or other testamentary arrangement.
• A close family relationship is missing. This is the case if either no personal relationship existed from the beginning, for example after a breakdown of contact shortly after birth, or if contact was completely interrupted for a longer period. Case law assumes approximately 20 years as a guideline here. However, it is sufficient if the estrangement had already begun at the time the will was drawn up, meaning the entire period does not have to have passed by the time the testamentary disposition was made.
• Whether a close relationship is missing is always judged according to the specific family law relationship. It makes a difference whether it concerns parents and children, spouses, or grandparents and grandchildren. The decisive factor is the spiritual-emotional relationship, not, for example, cohabitation or occasional visits.
• The breakdown of contact must not have been predominantly caused by the testator. If the testator refused contact without reason or created unbearable conditions, a reduction is excluded.
• The absence of a close relationship must be the causal factor for the reduction of the forced heirship share. The burden of proof lies with the heir who invokes the reduction.

Sebastian Riedlmair
Harlander & Partner Attorneys „Wer die Pflichtteilsminderung im Testament anordnet, sollte den Entfremdungsgrund nachvollziehbar darlegen. Eine saubere Dokumentation ist daher ausschlaggebend, da spätere Erben die volle Beweislast trifft.“

Potentially Affected Persons

The reduction of the forced heirship share is permissible for all persons entitled to a forced heirship share:

• Children and grandchildren (descendants),
• Spouses and registered partners.

Not affected are more distant legal heirs, as they have no claim to a forced heirship share.

Important: The descendants of a reduced person only receive the full forced heirship share if no reduction of the forced heirship share was ordered against them.

Tacit Reduction of the Forced Heirship Share

A reduction of the forced heirship share can also apply if the testator has completely passed over the person entitled to a forced heirship share, for example, by consciously not mentioning them in the will. This is considered a tacit reduction, provided that the other requirements are met. Here, too, the absence of a close relationship must be examined and justified.

Distinction from Disinheritance

In contrast to disinheritance, which completely eliminates the claim to a forced heirship share, the reduction of the forced heirship share only results in a reduction by half. The hurdles for disinheritance are significantly stricter and require serious misconduct on the part of the person entitled to a forced heirship share.

Revocation of the Reduction of the Forced Heirship Share

The testator can revoke an ordered reduction of the forced heirship share at any time, by:

• express declaration in a later disposition,
• destruction of the previous testamentary disposition, or
• subsequent reconsideration evident from the will.

Disputes and Judicial Enforcement

If a reduction of the forced heirship share is asserted, the following points are relevant in a dispute:

• The heir must present and prove the reduction and its requirements.
• The persons entitled to a forced heirship share can object to the existence of a close relationship or the testator’s contributory fault.
• In a dispute, the probate court is initially responsible, followed by the ordinary civil court at the defendant’s place of residence.

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