Unworthiness to Inherit
In Austrian law, unworthiness to inherit constitutes a ground for exclusion from inheritance rights. It applies when a person stands in a certain relationship to the deceased and has committed serious misconduct against them.
Unworthiness to inherit arises by operation of law. Therefore, it does not need to be stipulated in the will.
What is Unworthiness to Inherit?
Unworthiness to inherit represents a special ground for exclusion in Austrian inheritance law. A person who has behaved grossly contrary to duty towards the testator may lose their right to inherit – both within the scope of statutory and testamentary succession. This particularly affects the acceptance of inheritance, legacies, and forced heirship claims.
If a legally recognized ground for unworthiness to inherit occurs, the affected person loses their status as heir ipso iure, i.e., automatically.
However, unworthiness to inherit must be asserted by other parties involved.
Grounds for Unworthiness to Inherit
The law distinguishes between two groups of grounds for unworthiness to inherit: absolute and relative. Both categories aim to protect confidence in inheritance law and prevent unfair advantages.
Absolute Grounds for Unworthiness to Inherit
Certain actions lead to unworthiness to inherit regardless of the individual case. These primarily include criminal acts against the testator or the estate that can only be committed intentionally and are punishable by more than one year of imprisonment (§ 539 ABGB). A mere attempt is already sufficient. A conviction is not required.
These include, for example:
- Violence or threats against the testator
- Deception in the execution of a will
- Suppression or forgery of a will
- Serious criminal offenses against the deceased
Relative Grounds for Unworthiness to Inherit
Relative Grounds (Depending on the Individual Case):
These apply only if the deceased could no longer react themselves (e.g., due to illness, testamentary incapacity, or ignorance of the relevant circumstances):
- Criminal offenses against close relatives of the deceased
- Psychological cruelty towards the testator
- Gross breaches of duty in the parent-child relationship
Time of Assessment for Unworthiness to Inherit
The capacity to inherit is generally assessed at the time of the testator’s death according to § 543 ABGB. In certain exceptional cases, subsequent unworthiness to inherit may arise. This is the case, for example, if a person commits a criminal act against the estate after the accrual of inheritance or thwarts the true will of the deceased.
Consequences of Unworthiness to Inherit
The unworthy person:
- is legally treated as if they had not survived the testator
- may inherit nothing (not even a forced heirship share or a legacy)
Effects of Unworthiness to Inherit on the Descendants of the Unworthy Heir
Children of an unworthy person can inherit if they themselves are not unworthy to inherit. They step into the inheritance position of their parent.
Note: This only applies if there is no waiver of forced heirship share or disinheritance.
Forgiveness of Unworthiness to Inherit
Unworthiness to inherit can be lifted by the testator’s forgiveness. This can be done expressly, for example, in the form of a testamentary disposition, or implicitly. The forgiveness must clearly indicate the testator’s will to overlook the misconduct.
Subsequent forgiveness irrevocably removes unworthiness to inherit. In cases where the criminal act against the estate was committed after death or a will was suppressed, forgiveness is naturally excluded.
