Recently, the Supreme Court ruled in two cases on whether the reduction of the forced heirship share by half was permissible.
In the first case, there was no contact between a father and his illegitimate son from the age of three. On the occasion of his majority at 18, there was a maintenance dispute. From then on, the father continued to pay maintenance to his son for the duration of his studies. After that, the relationship remained distant. The testator also did not seek contact with his son and no longer responded to his letters on the occasion of his second marriage. Many years later, when the testator had to go to the hospital, his illegitimate son contacted him and visited him weekly in the hospital. They also had conversations about deeper topics. Even after that, when the testator moved into a nursing home, the plaintiff visited him weekly, helped him with problems, and regularly played chess with him.
In his will, which the father drew up a few weeks before his death, he appointed his legitimate son as his sole heir and reduced the illegitimate son's forced heirship share by half, but without success, as the Supreme Court ruled. This is because an estrangement justifying the reduction of the forced heirship share must be sustained, meaning there has been no contact between the deceased and the forced heir for at least two decades, as is customary between such relatives. At the time of the testator's death, this form of close relationship must therefore have ceased for a prolonged period. The period up to the testator's death is decisive.
Supreme Court 20.1.2026, 2 Ob 2/26x
In another case, the Supreme Court also found the appellate court's legal opinion, that the forced heirship share could not be reduced, to be justifiable, so the testator's daughter ultimately received her full forced heirship share. Although the court of first instance had determined that there had been no personal, postal, or telephone contact between the daughter and her father during certain periods, for other periods, however, the court of first instance made so-called "negative findings," stating that it could not be determined whether such personal, postal, or telephone contacts between the daughter and her father had occurred. According to the first instance court's statements, the court considered such contacts possible in its assessment of evidence, but did not deem them proven with the necessary high probability.
While the court of first instance had dismissed the claim for the (full) forced heirship share, the appellate court upheld the daughter's appeal and found that the conditions for reducing the forced heirship share by half, which the heir obligated to pay the forced heirship share must provide, were not sufficiently proven.
The Supreme Court confirmed the appellate court's statements regarding the burden of proof, according to which the debtor of the forced heirship share bears the burden of proving the circumstances that justify reducing the forced heirship share by half.
Note: The debtor of the forced heirship share would therefore have had to prove that the daughter had no contact with her father within the last 20 years until his death, as is customary between such relatives.
Supreme Court 20.1.2026, 2 Ob 217/25p
