Subsequent Heir

Subsequent Heir

A subsequent heir is a person designated by the testator who inherits only after another heir. Succession typically occurs upon the death of the preliminary heir, unless otherwise stipulated. In case of doubt, the subsequent heir is also a substitute heir.

The subsequent heir inherits after the preliminary heir. In the absence of other provisions, the time of succession is the death of the preliminary heir, according to § 608 ABGB

Legal Basis at a Glance

Relationship to substitute heir and accretion: Subsequent inheritance takes precedence over accretion. Furthermore, in case of doubt, the subsequent heir is considered a substitute heir.

• In case of doubt, the subsequent heir is also a substitute heir. In the absence of other provisions, they succeed upon the death of the preliminary heir.
• Subsequent inheritance is usually a subsequent inheritance of the remainder. The preliminary heir may use the assets but may not fraudulently diminish them.
• The expectant right of the subsequent heir is generally inheritable, even if they do not live to see the occurrence of the subsequent inheritance event themselves.

Peter Harlander
Harlander & Partner Rechtsanwälte „Der Nacherbe ist im Zweifel auch Ersatzerbe. Mangels anderer Verfügung tritt er mit dem Tod des Vorerben ein.“

Designation of Subsequent Heirs

The testator can freely determine who is designated as a subsequent heir. Several persons or an order can be determined. Possible options include:

• Conditions: for example, that the subsequent inheritance occurs if the preliminary heir survives for a certain period or an event occurs.
• Time limits: for example, that the subsequent inheritance becomes effective on a specific date.
• Order: The testator can establish a clear sequence (e.g., spouse as preliminary heir, children as subsequent heirs).

Prohibitions of Alienation and Encumbrance

Subsequent inheritance regularly includes a prohibition of alienation and encumbrance.

• This restriction is effective against third parties, without the limitations of § 364c ABGB.
• Dispositions that prejudice the subsequent heir are invalid.
• However, an acquisition in good faith by third parties may be possible under certain circumstances.

Subsequent Inheritance for Unborn Persons

A subsequent heir does not necessarily have to be alive at the time of the testator’s death. Even unborn persons (so-called Nascituri) can be designated as subsequent heirs, provided they are born viable at a later date. This opens up planning possibilities that consider multiple generations.

Rights and Duties of Preliminary Heir and Subsequent Heir

Upon the occurrence of the subsequent inheritance event, the subsequent heir assumes all rights and duties that still exist at that time.

• The preliminary heir may use and manage the estate assets but must preserve them. Fraudulent diminutions are impermissible.
• The subsequent heir has an expectant right to the estate. This right is inheritable, unless otherwise stipulated.

Implied Subsequent Inheritance

A subsequent inheritance can also arise implicitly if the interpretation of a testamentary disposition clearly indicates that the testator intended to pass on the assets to a further generation. In such cases, courts regularly assume that a subsequent inheritance was intended, even if the word “subsequent heir” was not explicitly used.

Subsequent Inheritance of the Remainder

The testator can arrange for a subsequent inheritance of the remainder. In this case, the preliminary heir may also consume the estate, but not maliciously or fraudulently diminish it. The subsequent heir receives only what actually remains at the end.

Relationship to Substitute Heir and Accretion

Subsequent inheritance clearly differs from substitute inheritance:

• The substitute heir succeeds immediately if the originally designated heir fails (e.g., due to predecease or renunciation).
• The subsequent heir succeeds only at a later time, usually upon the death of the preliminary heir.
• If an effective subsequent inheritance is missing, accretion occurs: The share accrues to the other co-heirs.

Practical Examples

• A testator designates their spouse as the preliminary heir. After their death, the common children are to inherit as subsequent heirs.
• The testator stipulates that the subsequent inheritance occurs only on a specific date, for example, when the youngest child reaches a certain age.
• It can also be stipulated that a subsequent heir is simultaneously a substitute heir, in case the preliminary heir does not succeed to the inheritance at all.

Your Benefits with Legal Assistance

The structuring of a subsequent inheritance is legally complex. Ambiguities often arise regarding the time of succession, the administration by the preliminary heir, or the distinction from substitute inheritance. Without precise formulations, conflicts of interpretation threaten, which can lead to lengthy proceedings and family disputes.

Legal assistance ensures:

• clear and legally sound formulations in a will or inheritance contract,
• protection of assets against impermissible diminutions by the preliminary heir,
• development of individual solutions tailored to the family situation,
• secure enforcement of your claims in probate proceedings.

This ensures that your last will is clearly implemented and your descendants actually receive what you intended for them.

Sebastian Riedlmair
Harlander & Partner Attorneys „Die Gestaltung einer Nacherbschaft ist rechtlich komplex. Häufig kommt es zu Unklarheiten über den Zeitpunkt des Eintritts, die Verwaltung durch den Vorerben oder die Abgrenzung zur Ersatzerbschaft.“

Frequently Asked Questions – FAQ