The spouse of a testator has a legal inheritance right regardless of any testamentary provisions and is entitled to the compulsory share of the estate. When calculating the compulsory share, all assets that the testator has previously granted to his compulsory heirs or transferred to third parties must be included in the basis of assessment (Sections 782 ff of the Austrian Civil Code, ABGB). The inclusion of such gifts from the testator to his compulsory heirs is unlimited in time and also counts towards the compulsory share claim of an heir. Similarly, gifts made by the testator to third parties must be included indefinitely in the calculation of the compulsory share claim of a compulsory heir if such gifts ultimately benefit the compulsory heirs of the testator (Section 782 (1), Section 792 ABGB).

The 2015 Inheritance Law Amendment Act contains new provisions regarding the attribution of assets transferred by the testator to a private foundation established by him: If the testator establishes a private foundation and assigns assets to it, such an asset transfer is treated as a lifetime gift (Section 781 (2) No. 4 ABGB). According to the 2015 Inheritance Law Amendment Act, gifts made by the testator to a private foundation established by him must be included in the basis of assessment for calculating the compulsory share of compulsory heirs if the assets transferred to the private foundation must be distributed to compulsory heirs (Section 780 (1) ABGB, Section 781 (2) No. 4 and No. 5 ABGB). The legal provisions of the 2015 Inheritance Law Amendment Act itself, the explanatory remarks on the government bill for the legislative amendment, as well as legal doctrine and case law support this principle: Donations made by the testator to a private foundation established by him must be included in the basis of assessment for calculating the compulsory share claims of the heirs without any time limitation if the private foundation is required to distribute these assets to compulsory heirs according to the testator's and founder's instructions.

Therefore, when a founder transfers his assets to a private foundation established by him with the condition that these assets must subsequently be distributed to his compulsory heirs, in the calculation of the compulsory share claim, the compulsory heirs themselves are considered the actual recipients of the asset transfers instead of the private foundation. In summary, it can be stated that when calculating the compulsory share claim, the assets transferred by the testator to a private foundation established by him must also be taken into account if these assets must be distributed to his compulsory heirs.

[1] Rabl in NZ 2015/107 p. 321 on the attribution of distributions from a private foundation established by the testator: "According to its wording, the law does not rely on any particular relationship between the testator's legal disposition and the beneficiary; instead, Section 781 (2) No. 5 merely requires that the private foundation was established by him or has received donations from him."

[2] Explanations on the 2015 Inheritance Law Amendment Act - ErbRÄG 2015 regarding Section 782 nF ABGB: "Distributions from a private foundation can also be subject to unlimited attribution if the distribution serves to circumvent the compulsory share right because the foundation is only interposed between the gift giver and the compulsory heirs to take advantage of the short period, which would restrict the claims of other compulsory heirs."

[3] Schauer in ZfS 2006, 52