Factual separation does not end the marriage.
Section 744 ABGB starts from the status as spouse. Mere separation is not the same as dissolution of the marriage.
Inheritance dispute
Separated but not divorced: the spouse’s inheritance right in dispute
If spouses separated before divorce, the status on the date of death affects inheritance rights and advance legacy.
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15 July 2026 · Mag. Bernhard Brandauer, Rechtsanwalt · last updated 9 July 2026
If spouses live apart but are not yet divorced, a death often triggers conflict. Relatives may see the marriage as practically over, while succession law starts from legal status.
This article focuses on death during the separation phase. Sections 744 to 746 ABGB, the statutory advance legacy and existing testamentary dispositions are central. It is not a general divorce guide.
Check status
Does the marriage still matter for succession?
Legal status on the date of death is the starting point.
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What was the relationship status on the date of death?
Separation, divorce proceedings and final dissolution have different effects.
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Overview of all answers.
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Read pending proceedings carefully.
Section 746 ABGB contains special rules where dissolution proceedings were pending at death and an agreement on division for the case of final dissolution exists.
Review testamentary dispositions separately.
A will, inheritance contract or revocation may alter the statutory position. The key question is whether the disposition is valid and expressly addresses the separation.
Why the date of death matters legally
Why the date of death matters legally
For statutory succession, the question is whether the marriage or registered partnership still existed on the date of death. Factual separation, separate residences or negotiations about divorce do not automatically replace final dissolution.
Under section 744 ABGB, the spouse is a statutory heir alongside children or parents of the deceased. Section 745 ABGB may also affect the statutory advance legacy.
What pending divorce proceedings can change
What pending divorce proceedings can change
Section 746 ABGB excludes former spouses after dissolution from statutory succession and the advance legacy. It also contains a special rule for pending dissolution proceedings where a suitable division agreement exists.
For that reason, it is not enough to say the marriage was already over. File stage, agreement and finality must be checked.
How a will or inheritance contract changes the dispute
How a will or inheritance contract changes the dispute
A will, inheritance contract, revocation or earlier joint planning may be decisive alongside statutory law. During separation phases, several documents with different dates often exist.
A person asserting or resisting rights should secure all documents and put them in chronological order. Only then can statutory succession, compulsory portion or testamentary disposition be weighted properly.
Living apart does not automatically mean divorced. Legal status on the date of death and available documents decide.
Frequent questions
Separated spouses in succession law
Does a separated spouse still inherit? +
Mere factual separation does not automatically end statutory succession rights. Legal status on the date of death is decisive.
What changes if divorce proceedings were pending? +
Section 746 ABGB may matter where dissolution proceedings were pending and a suitable division agreement existed.
Does an old will still apply after separation? +
That depends on content, date, revocation and statutory special rules. The documents must be reviewed fully.
Topics
SpouseSeparationDivorceAdvance legacyInheritance dispute
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