The Recognition of Care Services in Austrian Inheritance Law

Summary

INTRODUCTION

As of 1 January 2017, under certain circumstances Austrian inheritance law provides for a statutory claim compensating close relatives having taken care of a decedent. The legislator titles it as ‘legacy for care services’ (‘Pflegelegat’).

The present contribution on the one hand aims to give a short overview on the new s. 677 et seq. of the Austrian Civil Code (ACC) which form the substantive legal basis of the Pflegelegat (Section 4). On the other hand, the compensation of related caregivers has been a controversial legal issue before courts in the past. Caregivers have increasingly sought compensation for their services based on legal grounds rooted in the general law of obligations (Section 3), when these services exceeded the amount of support owed by the related caregiver under the (non-pecuniary) family law support obligation (Section 2) . This contribution will therefore shortly display the legal requirements for a compensation claim under general civil law. As the new legacy for care services is not intended to outlaw compensation claims for care services based on other legal grounds, compensation claims under general civil law are still of interest under the new Austrian legal framework.

FAMILY LAW OBLIGATIONS

Although care services provided by family members and relatives may often be performed out of a moral rather than a legal duty, a legal obligation to take care of one‘s family members can be derived to a certain extent from family law. As regards spouses, s. 90 subs. 1 ACC prescribes a comprehensive obligation to provide support towards each other. This obligation not only contains an obligation to provide maintenance as further addressed in s. 94 ACC, but also comprises nonpecuniary (intangible) support. Similarly, s. 137 subs. 1 ACC states that (minor as well as adult) children and parents are obliged to provide non-pecuniary support towards each other, whereas an obligation of the parents to provide maintenance towards their financially dependent (minor or adult) children is stipulated in s. 231 ACC. Vice versa, s. 234 ACC prescribes a maintenance obligation of children towards their financially dependent parents, only under narrower conditions.