Unborn child as a possible heir: securing the estate share until birth

Under section 22 ABGB, an unborn child is protected by law from the time of conception. Where its own rights are concerned, it is treated as born. The provision protects a possible legal position even though the birth has not yet taken place.

That position is not the same as a final estate share already established in every detail. Under section 536 ABGB, an heir generally acquires the right to inherit when the deceased person dies or when a suspensive condition occurs. For an unborn child, the file must therefore assess conception before the death together with the consequences of the later birth.

The probate file should show the date of death, the expected birth date and the medical information relevant to the pregnancy. Medical confirmations can support the chronological assessment. Which documents are sufficient depends on their reliability and the stage of the proceedings.

After birth, the live birth is shown by the civil-status record. Section 23 ABGB contains a presumption in favour of a live birth where it is uncertain whether a child was born alive or dead. The final assessment should nevertheless be based on a complete file rather than an assumption.

An unborn child cannot make declarations in the proceedings itself. The probate matter must therefore clarify who protects its interests. The scope of legal representation and its limits need to be checked. If the representative is also pursuing a personal claim to the estate, a possible conflict of interest must be addressed expressly.

Representation is a separate question from the eventual estate share. It first answers who may secure the possible heir’s rights and receive information in the proceedings. Declarations about a settlement, waiver or distribution should be made only after the roles and the court file have been reviewed.

While the possible heirship remains unresolved, the estate should not be distributed as if the unborn child did not exist. This is particularly important for a final devolution order, payments and dispositions of assets that could make a later calculation or recovery more difficult. Section 176 AußStrG provides for security before the devolution order where protected persons have unfulfilled inheritance claims; whether it applies depends on the claim and the procedural stage.

In practice, the file needs a precise inventory: which assets belong to the estate, which heirs are already established, what share would be assumed without the unborn child and which steps can wait until birth? A notional reserve alone does not replace a review of the actual proceedings.

A notional reserve of an estate share is not an automatic statutory mechanism. The file must instead identify which estate assets should remain available until the issue is clarified and whether security is needed for the open claim. Section 176 AußStrG links security to unfulfilled claims of protected persons.

An inventory may also matter. Under section 165(1) points 2 and 6 AußStrG, an inventory is provided for, among other situations, where protected persons need a legal representative or where an authorised person or the probate curator requests one. This does not mean that every case involving an unborn possible heir automatically requires an inventory. The statutory conditions must be checked in the actual file.

If the child is born alive and had already been conceived at the relevant time, its heirship is calculated finally under the statutory or testamentary basis. The previously open share is then reconciled with the other inheritance rights and any legacies.

In the case of a stillbirth, the special rule in section 22 ABGB for rights reserved for the event of life does not operate in the same way. A provisional protection must therefore not be mistaken for a final acquisition. The decisive facts and civil-status documents remain part of the probate file.