AUSTRIA Law and Practice Contributed by: Clemens Philipp Schindler, Schindler Attorneys
Posthumously Conceived Children and Inheritance Law If the testator does not mention an unborn child in their will, the legal consequences for the respective child depend on the knowledge of the testator regard - ing the unborn child, as follows: • if the testator was aware of the child, it is to be assumed that the omission was intentional and the child is entitled to a compulsory portion; • the omission of unknown children besides existing children in a last will is interpreted as though the testator had considered all children equally; and • in the case of intestate succession ( gesetzliche Erbfolge ), a child born after the death of the testa - tor is entitled to receive the same right of inherit - ance as their siblings. 9.2 Same-Sex Marriage Based on the 2017 decision of the Austrian Consti - tutional Court, same-sex marriages are recognised in Austria. Since the beginning of 2019, same-sex cou - ples have been able to choose between entering into a registered partnership ( eingetragene Partnerschaft ) or a marriage. In contrast to Germany, for example, an already exist - ing registered partnership cannot (yet) be converted into a marriage in Austria, as legal regulations in this regard have not yet been enacted. Austrian registered partners are treated equally to married spouses regarding inheritance and matrimo - nial law. 9.3 Cohabitation and Unmarried Couples Under Austrian law, unmarried couples and cohab - iting partners are generally not treated the same as spouses or registered partners; rather, in the absence of a specific agreement, they are largely subject to general civil and tax law. Merely living together does not generally give rise to comprehensive statutory maintenance or inheritance claims; in particular, there is no statutory right of inheritance and, as a general rule, no right to a compulsory share for the cohabit - ing partner. However, certain statutory protections do exist, such as a statutory right to succeed to a lease agreement. For estate planning, therefore, testamen -
None of the three types of adult representations are appointed by the family court. If none of the types of guardians can be appointed, the competent family court may appoint in ultima ratio a guardian to safeguard the interest of the disabled adult ( gerichtlicher Erwachsenenvertreter ). A guardian appointed by the family court may only be appointed for specific affairs. A guardian is also appointed by the court if a chosen guardian or a close relative acting as a guardian (ex lege) does not comply with the required care and duty criteria. 8.4 Elder Law Since 2010, the Austrian government has been pursu - ing a co-ordinated and comprehensive pension strat - egy to bring about long-term health promotion. Elder law in Austria is a cross-cutting issue between family, inheritance, labour and social security law. Austrian law offers various possibilities of adult repre - sentation in order to provide for potential health dete - rioration. There is also the possibility of establishing a living will ( Patientenverfügung ) to stipulate future medical treatment. On the other hand, Austrian social security law offers various forms of support, such as care allowance, depending on the health condition of the person con - cerned. 9. Planning for Non-Traditional Families 9.1 Children In Austrian law, children born out of wedlock, adopted children and children born during marriage have equal rights. In general, surrogacy is prohibited in Austria, although the Austrian Constitutional Court has decided that surrogacy does not violate fundamental Austrian val - ues. Since 2019, several Austrian authorities have acknowledged foreign authorities’ decisions on par - enthood regarding surrogate children.
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