Section 747 ABGB governs a surviving spouse’s maintenance claim against the estate and heirs. Credits and the value of the estate determine the assessment.
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.
When a spouse dies during an existing marriage, the surviving spouse may have a maintenance claim under Section 747 ABGB against the estate and, after the estate has been transferred to the heirs, against the heirs. The claim is limited to the value of the estate and generally continues until the beneficiary enters a new marriage or registered partnership.
The statutory credits are extensive. They include gifts from the deceased, the statutory inheritance share, the forced share, further benefits, the surviving person’s own assets and certain earnings from work. The claim must therefore be reviewed separately from an inheritance share, a forced share and a statutory legacy.
A short orientation separates the claim, credits and the estate limit.
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Separate marital status, credits and the estate limit.
Section 747 ABGB concerns the deceased person’s spouse or registered partner. The claim is directed against the estate and, after the estate has been transferred to the heirs, against the heirs, in each case up to the value of the estate.
Secure the marriage or partnership record, the date of death and the probate documents together. A divorced spouse requires a separate legal assessment.
Section 747 ABGB refers to gifts after the deceased, the statutory inheritance share, the forced share, public-law or private-law benefits, the surviving person’s own assets and returns from work that is performed or can reasonably be expected in the circumstances.
Record each item with its source, period and value. The open maintenance claim can only be assessed when these credits are visible separately from the ongoing needs.
The statutory limit is the value of the estate. The review therefore needs a transparent schedule of the estate and of the positions that reduce the claim under Section 747 ABGB.
A single property or bank balance cannot answer the question on its own. The relevant view is the documented total value of the estate and the benefits already received.
Section 747 ABGB names the deceased person’s spouse or registered partner. The marriage or registered partnership must therefore be examined at the date of death. The provision links the claim to this personal relationship and to the statutory conditions stated in the provision.
The claim is first directed against the estate. After the estate has been transferred to the heirs, the heirs are the defendants named by the provision. The file should state the stage of the probate proceedings and identify the source of each statement or payment.
Under Section 747 ABGB, the maintenance claim continues while the spouse or registered partner does not enter a new marriage or registered partnership. A concrete assessment therefore connects the relevant period with payments and the other items that must be credited.
The rule addresses the surviving spouse or registered partner. A former spouse after divorce requires a separate legal basis and is not treated here as a variation of Section 747 ABGB.
Section 747 ABGB requires credit for what the spouse or registered partner receives from the deceased through a contractual or testamentary gift. The provision also names the statutory inheritance share, the forced share, and public-law or private-law benefits.
The provision also takes the surviving person’s own assets and returns from work into account. This includes returns from work that is actually performed and from work that can be expected in the circumstances. Each item therefore needs a source, a period and a value.
The claim against the estate and heirs reaches up to the value of the estate. This wording sets an upper limit for the claim against the estate. It does not, on its own, determine the amount of ongoing maintenance in an individual case.
The review should therefore record estate assets and liabilities, benefits already received and the surviving person’s own means in separate columns. This makes it possible to see whether the estate limit or a credit changes the remaining amount.
Section 747 ABGB reserves the cases covered by Sections 746 and 777 ABGB. Those exceptions must be read in a concrete case. The existence of a marriage alone does not provide the complete answer.
For an initial review, secure marital status at death, testamentary or contractual gifts and the estate documents. The statutory exceptions can then be assessed against the specific facts.
The maintenance claim under Section 747 ABGB has its own legal basis. The statutory inheritance share and forced share may be credited in the calculation. They remain separate inheritance-law questions as well.
A spouse’s statutory legacy for the home and household also rests on its own legal basis. It may matter for the credit calculation, yet it does not automatically answer the maintenance question. The article on the spouse’s statutory legacy explains that distinction.
For marital status at death, the file should contain the marriage or partnership record, the death certificate and relevant court or authority documents. For the estate, collect the inventory, valuations, bank records, liabilities and probate documents.
Add testamentary or contractual gifts, evidence of the inheritance share and forced share, the surviving person’s assets and work income. A table with source, period, value and legal classification prevents the same item from being counted twice or omitted. The probate proceedings focus explains the wider procedural setting.
Section 747 ABGB connects the claim, credits and estate value. Keeping the levels separate makes the review transparent.
| Review question | Information to collect | Meaning for Section 747 ABGB |
|---|---|---|
| Who is entitled? | Spouse or registered partner at death | Personal condition of the basic rule |
| Against whom is the claim made? | Estate, then heirs | Defendant depends on the stage of the estate transfer |
| What is credited? | Gifts, inheritance share, forced share and further benefits | Reduces the remaining maintenance claim |
| Which own means count? | Own assets and specified earnings from work | Further statutory credits |
| What is the upper limit? | Value of the estate | Limits the claim against the estate and heirs |
Sections 746 and 777 ABGB operate as statutory reservations and require a separate review in the individual case.
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