Compulsory portion: disclosure by private foundations

Private foundations are often set up to order assets permanently; sometimes this has the side effect that compulsory portion claims risk becoming worthless. With decision 2 Ob 115/25p of 26 March 2026, the Austrian Supreme Court has significantly strengthened the position of those entitled to a compulsory portion.

The decision

Persons entitled to a compulsory portion can demand comprehensive information from a private foundation co-founded by the deceased: on the state of assets at the date of death, on beneficiaries and their distributions, at least where the deceased had reserved rights of influence such as a right of amendment or revocation. For the endowed assets the foundation is a donee; for beneficiary positions and distributions it bears the duty of disclosure that otherwise falls on the estate and the heirs. It must provide the information needed to value the claim.

Significance for the compulsory portion claim

Without information the claim cannot be quantified. Adding foundation transfers back into the estate calculation presupposes that the entitled person learns what was transferred and what it is worth. This is the hurdle at which compulsory portion claimants often failed. The decision gives them an effective instrument and forces foundations into transparency towards passed-over relatives.

Consequences for structuring

Anyone choosing a foundation solution for succession planning should therefore plan for compulsory portion claims from the outset rather than ignore them, by way of timely transfers, waivers of the compulsory portion in return for compensation, or an endowment able to serve foreseeable claims. Anyone facing an opaque foundation structure as an entitled person now has a disclosure claim confirmed by the highest court as a first means of recourse.