AUSTRIA Law and Practice Contributed by: Clemens Philipp Schindler and Katharina Schindler, Schindler Attorneys
2.4 Marital Property Under Austrian law, the principle of the separation of property applies during marriage ( Prinzip der Güter- trennung ), which means that the spouses remain the sole owners of the assets they bring into the mar - riage and acquire during the marriage. Therefore, each spouse may freely dispose of their property during a marriage. In deviation from this general rule, spouses may agree on one of the following different property regimes: • community of property during life, whereby the spouses acquire co-ownership of the joint assets; • community of property on death, whereby the assets remain separate until the death of one spouse; or • community of surplus, whereby the assets remain separate but the surplus is divided equally between the spouses. The amendment of the principle of separation of prop - erty may be concluded in a prenuptial or postnuptial agreement. Furthermore, regulations regarding the separation of assets in the case of divorce or regu - lations regarding inheritance may also be subject to a prenuptial or postnuptial agreement. Such agree - ments have to meet certain formal requirements. If nothing has been agreed between the spouses, the marital property and marital savings must be divided at divorce. However, companies (respectively, shares in such) are excluded from this principle by law, as long as they are not merely investments or in case of excessive profit retention. As of 1 January 2025, couples who married after 29 January 2019 and have cross-border elements can now choose via prenuptial agreement which country’s property regime applies, based on either nationality or habitual residence. 2.5 Transfer of Property The transfer of property on the basis of a gift is subject to special formal requirements (under certain condi - tions). To be able to enforce a donation that is not immediately effected, a notarial deed is required, in order to ensure the donor’s awareness of the con -
sequence of their action. Such a notarial act natu - rally leads to additional costs. In connection with the transfer of real estate, the necessary registration fees in the land register are additional costs that must also be taken into account. If the transfer concerns real estate, the acquisition costs of the real estate are carried forward by the suc - cessor. Furthermore, a real estate transfer tax of up to 3.5% of the value of the real estate is triggered, as well as a registration tax of 1.1% of the threefold tax assessment value ( dreifacher Einheitswert ). Certain donations must be reported to the tax author - ity. The notification requirement only applies to inter vivos gifts (eg, not gifts on death) and only to cer - tain assets, including cash. Donations between rela - tives up to a value of EUR50,000 within one year are exempt, as are donations between third persons up to a value of EUR15,000 within five years. No notification is required if the donation concerns real estate. 2.6 Transfer of Assets: Vehicle and Planning Mechanisms There is no inheritance or gift tax in Austria, so there are no requirements for planning mechanisms for the tax-free transfer of assets to younger generations. However, there is a special notification obligation for gifts of cash, receivables, shares in corporations, interests in partnerships, businesses, movable tangi - ble assets and intangibles. An intentional violation of the notification obligation may trigger fines of up to 10% of the fair market value of the gift. 2.7 Transfer of Assets: Digital Assets The “digital estate” includes all digital data and con - tent, such as internet profiles, social media, email accounts, telephone contacts, blogs, accounts with messenger services, photos and videos, stream - ing rights, cryptocurrencies, etc. There are no legal regulations or Austrian Supreme Court decisions that explicitly govern the digital estate per se., but it is the prevailing opinion that the digital estate passes to the heirs by means of universal succession. In its landmark decision in 2018, the German Supreme Court (BGH III ZR 183/17) explicitly stated that heirs should have access to online accounts and storage
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