Reduction of compulsory portion (only) in case of estrangement of at least 20 years

What had happened?

The plaintiff is the son of the deceased, the defendant his brother. The deceased had appointed the defendant as sole heir by will and reduced the plaintiff’s compulsory portion to half. After the plaintiff’s marriage in 2005, the contact, which had been sporadic until then, decreased more and more and finally broke off completely in 2008. The reason for the interruption of contact was, on the one hand, the family of the plaintiff’s wife and, on the other hand, the father’s state of health – among other things, he suffered from depressive states and delusions, which is why he was also undergoing psychiatric treatment and a custodian was subsequently appointed.

The plaintiff did not accept the halving of the compulsory portion and demanded the full compulsory portion from the defendant. The court of first instance upheld the plaintiff’s action and awarded him the full compulsory portion. This was justified on the grounds that there was no longer period within the meaning of Section 776 ABGB. The Court of Appeal also confirmed the decision in principle, but slightly reduced the value of the claim on the compulsory portion.

The defendant appealed against this judgment to the Supreme Court. In this appeal, he argued, among other things, that the question of the reduction of the compulsory portion must always be based on the individual case and that a reduction of the compulsory portion was justified in the specific case.

What did the Supreme Court decide?

The essential question which the Supreme Court had to answer was at what point a "longer period" within the meaning of Section 776 of the Austrian Civil Code exists.

Pursuant to Section 776 (1) ABGB, the compulsory portion may be reduced to half if, at least over a longer period of time, there was no close relationship between the beneficiary and the deceased person, as usually exists between family members.

In its comments, the Supreme Court dealt in detail with the materials as well as the various doctrines and came to the conclusion that at least 20 years must pass in the parent-child relationship for a "longer period" to exist. Thus, the Supreme Court rejected the doctrines that also consider shorter periods of alienation as sufficient.

The appeal was therefore not upheld. The requirement of a period of estrangement of at least 20 years had not yet been met, which is why the plaintiff is entitled to the full compulsory portion.

(Decision OGH 2 Ob 83/21a of 14.12.2021)

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