An inheritance waiver may also cover descendants. How form, scope and different agreements are reviewed under section 551 ABGB.
Mag. Bernhard Brandauer
Attorney · BRANDAUER Rechtsanwälte, Salzburg
Inheritance matters are handled by Mag. Bernhard Brandauer together with a coordinated team. We examine the will, compulsory portion, gifts and deadlines and tell you clearly where you stand.
An inheritance waiver for specific descendants is often intended to organise a family’s later succession. The key issues are whether the waiver was validly agreed before death, which persons it covers and whether the deed sets a different scope.
Section 551 ABGB provides the formal requirements and allows the parties to define a different scope. This article explains the main review points and distinguishes an inheritance waiver from a declaration that is only intended to be made after death.
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The choice narrows the first review for a planned or existing inheritance waiver.
Under section 551 ABGB, an inheritance waiver is agreed in advance by contract with the person whose estate will later be inherited. The contract requires a notarial deed or certification in a court record.
Review the draft, the deed and the parties involved before any declaration is made.
Section 551(2) ABGB generally extends an inheritance waiver to the compulsory portion and to the waiving person’s descendants unless the parties agreed otherwise. Whether an exception exists must be determined from the deed.
A reference to specific descendants should therefore be read together with the entire agreement and the rules of succession.
After death, the original waiver cannot be newly agreed. The relevant questions are what was validly agreed before death and how that agreement fits into the probate proceedings.
Secure the complete deed, including amendments, and identify the precise legal consequence disputed by the parties.
The inheritance waiver under section 551(1) ABGB is a contract with the person whose estate is concerned. It is therefore concluded in advance. A unilateral statement to children, siblings or other relatives does not replace this contract.
After death, the issue is the interpretation and enforcement of an agreement that already exists. A new section 551 ABGB agreement can no longer be concluded with the deceased person. This distinction prevents a later statement from being confused with the original waiver.
The contract is valid only if it is made as a notarial deed or certified in a court record. A private family letter, email or simple signature on a self-prepared text therefore does not satisfy the form for this type of waiver.
Cancellation also has a formal requirement: section 551(1) ABGB requires written form. The original deed, later written cancellations and amendments must therefore be reviewed together. Later conduct alone does not answer the formal question.
These questions are connected, but each has a different legal function.
| Review level What is clarified? | Key question What matters? | Typical evidence What should exist? |
|---|---|---|
| Timing | Was the waiver agreed during the person’s lifetime with the later deceased person? | Agreement and execution date |
| Form | Is there a notarial deed or court record? | Complete deed |
| Scope | Does the agreement cover heirship, compulsory portion and descendants, or is there an exception? | Wording, amendments and interpretation |
The legal consequence depends on the deed and on statutory or testamentary succession.
Section 551(2) ABGB generally extends an inheritance waiver to the compulsory portion and to the waiving person’s descendants. This applies unless the parties agreed otherwise. The deed must therefore be read to determine whether it contains a different scope.
The phrase “for specific descendants” does not by itself answer who will ultimately inherit. It may describe the family purpose, but it does not replace a review of statutory succession, a will and the other contractual clauses. Each affected person’s position must be determined separately.
In a dispute, collect the complete deed with exhibits, amendments and written cancellations. Wills, transfer agreements, payment records and correspondence may also show what arrangement the parties originally intended.
It is important to separate the legal wording from the family background. An expected transfer of assets or a settlement payment does not by itself prove that the waiver was meant to appoint a particular person as heir. These questions must be assessed from all documents and the procedural stage.
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