A missing relative is not automatically presumed dead. Requirements, periods and inheritance effects of a declaration of death under Austrian law.
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.
Unknown whereabouts do not prove that a relative has died. Before a declaration of death can be considered, it must first be established that the person is missing within section 1 of the Austrian Declaration of Death Act or that a specific danger triggers a separate statutory rule.
The distinction matters for probate: the missing person's estate can be opened and distributed only on a reliable legal basis. This article explains the requirements, the relevant periods and the effect of the established time of death.
This short assessment separates general disappearance, a specific danger and a death that is already certain.
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The classification separates an unknown whereabouts, a specific life-threatening event and a death that is already certain.
Where the person has been absent for a long time, section 1 of the Austrian Declaration of Death Act must be examined first. For a general disappearance, section 3 generally requires ten years from the end of the year in which the person was last known to be alive. If the person would have reached the age of 80 at the time of the declaration, the period is five years.
Specific dangers are governed by separate rules. Section 5 concerns disappearance at sea, section 6 a flight and section 7 another life-threatening event. The relevant period begins with an event defined by law and cannot be replaced by the general ten-year period.
Section 1(2) does not classify a person as missing where the circumstances leave no doubt about the death. The disappearance period is then not the central issue. The inheritance requires suitable proof of death and an established time of death.
Section 1(1) of the Austrian Declaration of Death Act requires connected circumstances: the person's whereabouts must have been unknown for a longer period, there must be no information showing whether the person was alive or dead, and the circumstances must create serious doubt about continued life. A loss of contact, an unknown address or an unanswered message does not by itself satisfy these requirements.
Section 1(2) provides an additional boundary. A person whose death is not doubtful from the circumstances is not legally missing. The assessment therefore starts by asking whether proof of death is already possible or whether the uncertainty about life and death is the defining issue.
Under section 3(1), a declaration of death for a generally missing person is generally possible once ten years have passed from the end of the year in which the person was last known to be alive. The starting point is therefore the end of the year of the last reliable information about life.
For a missing person who would have reached the age of 80 at the time of the declaration, section 3(1) reduces the period to five years. The provision also contains an age threshold: under the general rule, the person cannot be declared dead before the end of the year in which the person would have reached the age of 25. Age, last reliable information and the possible decision date must therefore be calculated together.
The Austrian Declaration of Death Act treats specific dangers separately. For a person missing while serving with an armed force or during a special operation, section 4 generally uses a one-year period linked to the end of the year in which the war, operation or undertaking ended. If the circumstances create a high probability of death, the period may be calculated from the time of disappearance.
Section 5 provides a six-month period for disappearance at sea, running from the loss of the ship or another relevant event. Section 6 provides three months for a flight, running from the destruction of the aircraft or the event, and where the event cannot be established from the last information showing that the missing person was alive. For another life-threatening event, section 7 generally provides one year from the end of the danger or from the time when its end could reasonably have been expected.
Where several special situations overlap, section 8 gives priority to section 4 if its requirements and those of section 5 or 6 are also met. The event sequence therefore needs to be documented with care.
The period follows the type of disappearance and the relevant event.
| Situation What happened? | Starting point When does the period run? | Basic statutory rule What period does the Act state? |
|---|---|---|
| General disappearance | End of the year of the last information showing life | Ten years, or five years if the person would have reached 80; age threshold 25 |
| Armed force or special operation | End of the war, operation or undertaking, or disappearance where death was highly probable | Generally one year under section 4 |
| Disappearance at sea | Loss of the ship or another relevant event | Six months under section 5 |
| Disappearance during a flight | Destruction of the aircraft or last information showing life | Three months under section 6 |
| Another life-threatening event | End of the danger or the expected end of the danger | One year under section 7 |
The table does not replace an assessment of the information, danger and dates in the individual case.
Section 9 provides that a declaration of death creates a presumption that the missing person died at the time stated in the decision. The court should establish the time that is most probable according to the investigations. If no such time can be identified, section 9(3) provides substitute rules for the different situations. If only the day can be established, the end of that day is treated as the time of death.
Until the declaration of death, section 10 presumes that the missing person continues to live or lived until the relevant time under section 9(3) and (4). The court decision therefore creates the basis for placing the death in time. Under section 536 of the Austrian Civil Code, an heir generally acquires the right to inherit upon the death of the deceased. In a missing-person case, the devolution, time of death and estate must therefore be examined together.
The assessment requires a continuous chronology: the last reliable information about life, known places of residence, searches and contact attempts, specific danger events and later official or court documents. In a maritime, aviation or other danger case, the event and its available dates should be recorded separately.
You should also organise civil-status records, wills, information about possible heirs and documents concerning the missing person's assets. These documents answer different questions: whether the person is legally missing, which period applies, which time of death should be established and which people may participate in the later probate proceedings. The document file should therefore be kept separate from a declaration of acceptance that has already been made.
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