If a divorced person who was obliged to pay maintenance dies, section 78 of the Austrian Marriage Act generally transfers the maintenance duty to the heirs as a liability of the estate. The continuing spouse’s maintenance does not end solely because of the death. The law provides for a review of the heirs’ circumstances, the estate’s earning capacity and fairness when determining the ongoing amount.
This rule concerns post-divorce spousal maintenance. It does not decide statutory succession or the first calculation of a maintenance claim. A contribution imposed under section 68 of the Marriage Act has its own consequence because it ends when the obligor dies.
Anyone whose payments stop after the death should secure the maintenance title, agreement and payment history. These documents show which claim existed and which amounts had already fallen due before the death.
What should be checked after the maintenance obligor dies?
This short check separates the claim, a possible reduction and the relevant documents.
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Which situation applies?
Choose the answer closest to your situation. The check does not replace a review of the title and the estate.
Overview of all answers.
Prepare the transfer of the regular maintenance duty
Keep the maintenance title or agreement, the last payments and the death documents together. Then clarify who can be contacted as heir or estate representative and which regular amounts remain outstanding.
Review a reduction under section 78(2)
Ask for a comprehensible account of the heirs’ circumstances and the estate’s earning capacity. The statute does not create a fixed reduction rate. The assessment depends on fairness in the individual case.
Separate the section 68 contribution duty
Check whether the claim was based on a contribution duty under section 68 of the Marriage Act. Under section 78(3), this special contribution duty ends when the obligor dies. Other maintenance titles must be distinguished.
What does section 78 provide when the obligor dies?
Section 78(1) of the Marriage Act provides that the maintenance duty passes to the heirs as a liability of the estate when the obligor dies. For the person entitled to maintenance, the claim therefore has to be assigned to the estate situation after the death. Death alone does not remove the continuing maintenance duty.
The concrete maintenance title or agreement is needed for this classification. It should show the legal basis, when the maintenance became due and whether amounts were already outstanding. These questions concern the maintenance claim and are separate from the heir’s succession share.
When can the maintenance be reduced?
Section 78(2) provides for a statutory possibility to reduce the maintenance. The person entitled must accept an amount that is fair in view of the heirs’ circumstances, the estate’s earning capacity and the circumstances of the individual case.
The provision sets no general percentage and no single calculation formula. The heirs’ circumstances and the estate’s income-producing capacity therefore have to be established specifically. The existing maintenance amount, the person’s own need and the basis of the original claim remain relevant. A bare notice that payments will be cut does not explain the statutory assessment.
How should liability and the estate be kept separate?
Section 78(2) states that the heir is liable without the limitations of section 67. This statement stands alongside the possibility of reducing the maintenance with regard to the heirs’ circumstances, the estate’s earning capacity and fairness. The basis of liability and the amount of the continuing maintenance are therefore separate points for review.
In practice, estate information, known assets, ongoing income and the person’s position in the probate proceedings should be documented in a comprehensible way. The value of one asset does not by itself produce a final maintenance amount. The statutory assessment looks at the circumstances as a whole.
What applies to a contribution duty under section 68?
Section 78(3) contains a separate rule: a contribution duty imposed on a spouse under section 68 ends when the obligor dies. This consequence must be distinguished from the transfer of another maintenance duty described in section 78(1).
The exact legal basis must therefore be read in the judgment, order or settlement. Calling a claim spousal maintenance is not enough for the classification. The specific basis determines whether a maintenance liability continues as an estate liability or whether the special contribution duty ends at death.
Which arrears and documents matter first?
Prepare a timeline of the amounts due and actually received. Separate amounts due before the death, continuing claims afterwards and reductions that have already been announced. The maintenance title, divorce settlement, bank statements and written communications from the heirs form the first evidence chain.
The death certificate, known probate information and documents showing your own need may also matter. The first legal review should identify the legal basis and the outstanding claim. The possible reduction can then be assessed against the specific estate and heir circumstances.
Three legal consequences after the death
The exact legal basis determines which consequence must be reviewed.
| Starting position | Consequence under section 78 | Important documents | |
|---|---|---|---|
| Continuing maintenance duty | The divorced person obliged to pay maintenance dies. | The duty generally passes to the heirs as a liability of the estate. | Title or settlement, payment history, death certificate |
| Reduction | The heirs’ circumstances or the estate’s earning capacity become relevant to the amount. | A fair amount is assessed with regard to the statutory criteria. | Heir information, estate documents, need and existing maintenance |
| Section 68 duty | The claim is an imposed contribution duty under section 68. | This special contribution duty ends when the obligor dies. | Decision or settlement stating the exact legal basis |
The overview does not replace a review of the maintenance title and probate circumstances.
Four steps for the first review
A clear order separates the legal basis, payment status and estate review.
Read the legal basis
Review the title, order or settlement for the basis, start date and amount of the maintenance.
Compare payments
Organize amounts due, received and outstanding before and after the death.
Classify the consequence
Separate transfer to heirs, reduction and the section 68 exception.
Present the evidence
Compile payment records, death documents, personal documents and known estate information.
For the review: Keep the maintenance title, divorce settlement, bank statements, recent letters and a monthly payment overview ready. Mark which amounts fell due before the death and which payments stopped afterwards.
Death of the maintenance obligor
Does spousal maintenance automatically end when the obligor dies?
Under section 78(1), a continuing maintenance duty generally passes to the heirs as a liability of the estate. The exact legal basis of the claim still has to be reviewed.
Can the heirs reduce the maintenance as they wish?
Section 78(2) provides for a reduction with regard to the heirs’ circumstances, the estate’s earning capacity and fairness. It does not support an arbitrary or unexplained reduction.
Is there a fixed percentage limit for a reduction?
Section 78 does not state a general percentage limit. The appropriate amount depends on the statutory criteria and the circumstances of the individual case.
What happens with a contribution duty under section 68?
A contribution duty imposed under section 68 ends under section 78(3) when the obligor dies. This consequence must be separated from another maintenance duty that passes to the heirs.
Which documents should I secure first?
Secure the maintenance title or settlement, bank statements, an arrears overview, the death certificate and communications from the heirs or estate. Documents about your own need may also be relevant.
Related topics
Post-divorce maintenance: settlement and later change
Organize the legal basis, agreement and possible later adjustment before deciding.
A spouse dies during pending divorce
Assess inheritance, the family home and proceedings at a different procedural stage.
Post-divorce maintenance and a new partnership
Review changes caused by a new partnership in relation to the existing claim.
Preparing the consultation
Compile the most important documents and open questions for the consultation.