Renunciation of Inheritance

An inheritance waiver is a contract that one concludes during their lifetime in order to waive the inheritance in whole or in part. Unless otherwise specified, one also waives the legally guaranteed minimum share of the inheritance in the form of the compulsory portion. In this case, one speaks of a comprehensive inheritance and compulsory portion waiver in accordance with § 551 Abs. 2 ABGB .

The inheritance waiver can be given either for a consideration or without a contribution from the testator. In addition, an inheritance waiver can apply to various types of inheritances, for example, for an inheritance contract, a will, or the legal succession. In practice, however, it is most often concluded in the case of legal succession.

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Forms of Inheritance Waiver and Compulsory Portion Waiver

Renunciation of inheritance and compulsory portion can be made conditionally or unconditionally. There are the following categories of inheritance and compulsory portion renunciation:

Pure Inheritance Renunciation

In this case, someone only waives their right to inherit, i.e., the right to be appointed as an heir. However, the right to the compulsory portion, the legally guaranteed minimum share of the inheritance, remains intact. This allows the person to protect themselves in case the will does not consider family members but only strangers.

It is important to know that a simple inheritance renunciation without further explanations automatically also means a waiver of the compulsory portion. This is called a comprehensive renunciation of inheritance and compulsory portion.

An inheritance waiver can also be given under the condition that another person receives the inheritance. Often, the condition is that the inheritance automatically goes to the next person in the line of succession. This could be, for example, the heir’s child.

Comprehensive Inheritance and Compulsory Portion Waiver

Here, one waives both the right to inherit and the compulsory portion. This means receiving neither the inheritance nor the compulsory portion.

Pure Compulsory Portion Waiver

In the case of a compulsory portion waiver, one waives the legally protected minimum share of the inheritance (compulsory portion). However, the waiver does not increase the compulsory portion claims of the remaining compulsory portion beneficiaries.

Difference between Inheritance Waiver and Compulsory Portion Waiver

The main difference between a compulsory portion waiver and an inheritance renunciation lies in what exactly is being waived. With an inheritance renunciation, one gives up their entire inheritance right, both the compulsory portion and the inheritance share. With a compulsory portion waiver, on the other hand, one only renounces the compulsory portion, which is the legally protected minimum share. However, one retains the inheritance share, i.e., the right to actually become an heir. Therefore, with a compulsory portion waiver, one is not completely excluded from the inheritance.

Consequences of Inheritance Waiver

A renunciation of inheritance means that one waives the right to become an heir – at least for the part specified in the contract. For example, one can renounce only the statutory inheritance right or only part of the inheritance or compulsory portion right, or make these conditional.

Important: A renunciation of inheritance does not make the person generally incapable of inheriting. For instance, if someone renounces only the statutory inheritance right, they can still inherit through a will or receive a legacy.

With a pure renunciation of inheritance, the right to the compulsory portion remains intact. Furthermore, this generally does not preclude being considered for a legacy. According to case law, however, the so-called preliminary legacy of the spouse is normally affected by the renunciation.

If the renunciation of inheritance was made without conditions, it also applies to the descendants of the renouncing party.

An inheritance waiver remains valid even if the waiving person declares it under the condition that someone else receives the inheritance. In this case, the next person in the line of succession automatically receives the inheritance.

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Formal Requirements for Inheritance Renunciation and Compulsory Portion Waiver

For the renunciation of inheritance and compulsory portion drawn up by your lawyer or by you, one of the following formal requirements must be met:

• Recording by a public notary and notarization
• Notarization through court protocol

Legal representation is possible, so you are not required to be present in person. This can be particularly interesting if you live abroad and do not want to travel specifically for this purpose.

Can You Inherit Despite a Renunciation of Inheritance?

Even if someone declares a renunciation of inheritance, they can still be considered through a legacy. According to case law, the so-called preferential legacy of the spouse is usually affected by the renunciation of inheritance.

Can You Inherit Despite a Compulsory Portion Waiver?

In the case of a compulsory portion waiver, one voluntarily waives the right to receive a certain minimum share of the inheritance. The testator can still consider the person who has declared the waiver, which can lead to an inheritance claim. Because the compulsory portion is a legally protected right, the statutory advance legacy of the spouse or registered partner is also automatically included with the waiver as a rule.

Revocation of Inheritance Waiver and Compulsory Portion Waiver

For the revocation of a renunciation contract, a simple written form is sufficient. This means it is enough if the declaration is written and signed. A notary is not necessary for this.

Before the 2017 inheritance law reform, a waiver could even be revoked without any form, for example, if the testator nevertheless considered the waiving person in his will

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Costs

The costs for a renunciation of inheritance are usually covered by the testator. However, something else can also be agreed upon. The costs are typically the fee for the notary and, if applicable, for legal advice from a lawyer. How high these are depends mainly on the value of the assets being renounced. The larger the renunciation, the higher the costs.