unternehmensnachfolge-anwalt.at
Mag. Bernhard Brandauer, Rechtsanwalt
How spouses can define ownership, work, management and remuneration in an Austrian family business and prevent succession conflicts.
One spouse owns the shares. The other conducts staff interviews, looks after customers and takes part in daily decisions. As long as the business performs well, this arrangement may feel self-explanatory. Business succession reveals whether work, remuneration, management authority and ownership actually fit together in legal terms. If they do not, a private conflict can quickly impair the ability of the company to act.
Marriage alone does not make a person a shareholder, managing director or employee. Years of work in the business are not legally irrelevant either. Austrian law provides a family-law claim to appropriate compensation for a spouse who contributes to the earnings of the other spouse, unless the work is already governed by a contract. A spouse who owns a business share also has rights and duties under company law. These layers should not disappear behind the broad label of a family role.
This article explains how spouses can organise their roles before a transfer and which provisions should still work during illness, separation or dispute. The topic page on family business transfer explains the overall succession process. The focus here is the specific interface between marriage, operational work and business ownership.
The quick check separates work, ownership, corporate office and active conflict. Your selection can then be sent to the firm together with the essential facts.
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Record duties, time spent, payments, powers of attorney, banking access, corporate offices and shareholdings separately. Then decide which work should continue as employment, management or a shareholder contribution.
Establish whether there was a contractual arrangement or whether the contribution falls under sections 90 and 98 ABGB. Future duties, remuneration, working time, authority and termination should then be documented clearly.
Review the percentage, consideration, voting rights, profit rights and consent requirements in the articles. An inter vivos transfer of a GmbH share requires a notarial deed under section 76(2) GmbHG and must fit the intended future role of the spouse.
Align shareholder resolutions, managing-director appointments, service agreements, signing powers and reserved matters. Also define which information each spouse receives and how contradictory instructions are resolved.
Define ownership, management, remuneration and control rights for each transfer phase. Add rules for illness, death, withdrawal and a later sale before personal tension makes negotiation more difficult.
Agree temporary responsibilities, approval limits, access to documents and a fixed timetable for disputed strategic issues. A facilitated negotiation can determine whether continued cooperation, a role change or an exit is sustainable.
Protect management, banking, staff and current contracts first. Then address the share, corporate office, employment agreement, loans, guarantees, profit rights and data access in a coordinated implementation sequence.
In family life, ownership, work and decision-making often feel like one position. Legally they are different. A shareholder is the person who validly owns the business share. An employee or independent contractor performs work under an agreement. A managing director is appointed by a shareholder resolution under section 15 GmbHG. A person may also hold a commercial power of attorney, banking authority or internal signing rights.
Each role creates different claims. Managing-director remuneration is not a dividend. A dividend does not automatically pay for extra working hours. Use of a company card is not a shareholding. Banking authority permits defined transactions but creates no ownership. If all benefits are balanced through one private account, the legal basis, tax treatment and outstanding claims soon become impossible to trace.
Succession therefore needs a role matrix. For each spouse, it records the ownership percentage, voting rights, corporate office, operational duties, remuneration, powers and personal liabilities. It also states which role will continue after the transfer. The article on trial management and gradual transfer of responsibility shows how management can be handed over without confusing control of the business with ownership.
Section 90(2) ABGB requires one spouse to contribute to the earnings of the other only where the contribution is reasonable, customary in light of their circumstances and not governed by another agreement. It does not establish an unlimited obligation to fill a full operational position without clear terms. Section 98 ABGB generally gives a spouse who contributes to the earnings of the other a claim to appropriate compensation. The nature and duration of the work and the overall circumstances of the spouses must be considered.
A claim under section 98 ABGB is not simply a monthly salary calculated years later. The Austrian Supreme Court treats it as a distinct family-law claim and also considers the economic success of the business. Most importantly, it is subsidiary to an effective agreement. RS0009621 states that a contractual arrangement governing the contribution is decisive for claims derived from it. An employment agreement, managing-director agreement or genuine company participation cannot therefore be replaced at will by section 98 ABGB.
Whether an employment relationship was actually agreed is not determined by a label alone. RS0009631 requires an employment relationship between spouses to be expressed clearly. Duties, control over work, working time, remuneration, leave, expenses and termination should reflect the actual cooperation. Payroll, social insurance and tax treatment can then be coordinated with the relevant advisers.
A particularly difficult statement is that the work will be compensated with shares later. Until the transfer is completed in the required form, it remains unclear whether the parties intended remuneration, a gift or an acquisition for consideration. A reliable arrangement states the percentage, votes, profit rights, consideration, transfer date and conditions. This turns a personal expectation into an implementable transaction.
A marriage agreement, articles of association and employment agreement perform different functions. A marriage agreement can shape the property relationship between the spouses. The articles govern membership, voting, transfers and exits. An employment or managing-director agreement governs work and remuneration. A provision in one document does not automatically replace a required provision in another.
On divorce, section 81 EheG provides for division of matrimonial household property and matrimonial savings. Section 82(1)(3) and (4) EheG generally excludes assets belonging to a business and shares in a business, unless a share is merely an investment. In RS0057567, the Supreme Court confirms this separation but also explains that sale proceeds not reinvested in a business may later constitute matrimonial savings. A shareholding should therefore not be designed on the broad assumption that it will simply be divided in half or that every value connected with it will remain entirely irrelevant.
For the operating company, the more immediate point is that personal separation does not automatically end corporate positions. A spouse remains a shareholder, managing director, employee, lender or guarantor until the relevant position is changed effectively. Joint brands, real estate, vehicles and data access also need precise allocation. Good drafting does not penalise a private decision automatically. It provides neutral rules for continuation, valuation and exit.
The most dangerous conflict is not every personal disagreement. It is uncertainty about who may decide. Two spouses can disagree privately and still pass valid business resolutions. The situation becomes critical when staff, bank payments, suppliers or investment depend on changing oral instructions. Employees then need one binding line of authority and management needs clear approval limits.
An interim operating protocol can define responsibility for ordinary business, transactions requiring joint approval and emergency decisions. It can organise access to accounts, banking, customer files and digital systems without using sensitive data as leverage. Existing statutory and contractual information rights remain intact. At the same time, a spouse should not be excluded from operational communication while still holding a formal office that requires information.
A staged negotiation process, mediation and a defined escalation point can address strategic issues. In an equal ownership structure, a clause stating that the spouses will agree is not enough. Options include a neutral advisory board, qualified majorities for defined matters, separating operational authority from ownership questions or an orderly exit mechanism. The article on the family council in the business explains why expectations and legally effective resolutions should be documented separately.
An exit mechanism must address price, valuation date, process, affordability and security. An aggressive clause that removes a share far below value as soon as a private conflict arises will usually deepen the dispute. The objective is a process that stabilises the business and remains understandable for both sides.
A transfer to a child or an external successor often focuses only on the share held by the principal owner. The other spouse may nevertheless remain a managing director, employee, guarantor, landlord of business premises or holder of important customer relationships. If those positions are left outside the plan, the successor may receive shares without clear operational control.
Each transfer phase should state who owns, who manages, who controls and what remuneration is paid for. A transition period can be useful where knowledge and relationships need to be transferred gradually. It still needs an end date and defined authority. Indefinite joint involvement by transferors, spouses and successors produces more uncertainty than protection.
Incapacity and death also belong in the plan. Powers of attorney, management representation, buyout rights, the will and any beneficiary designations should pursue the same objective. If one spouse alone owns the share while the other effectively runs the business, an unexpected death can separate ownership from operational experience. The appropriate solution depends on the family, articles and forced-heirship positions and should be designed in advance.
The succession package should also address personal security. A spouse leaving the business may remain liable for bank debt despite the end of operational work. Shareholder loans, current accounts or unpaid remuneration may also remain outstanding. Release from guarantees, repayment of loans and termination of corporate offices are separate implementation steps.
The first review needs the current articles, company-register extract, shareholder resolutions, employment and managing-director agreements, powers of attorney, loan and security documents, and a summary of the work actually performed. Payroll records, dividend resolutions and shareholder current accounts help allocate payments correctly. Private account movements are relevant only to the extent that they relate to the business.
A role schedule is then prepared for the present position, the transition and the target structure. Each line answers five questions: who decides, on what legal basis, with which liability, for what remuneration and until which date? Blank fields show where a resolution, agreement or formal act is missing.
The next step tests disruption scenarios. What happens during illness, prolonged disagreement, withdrawal, separation or death? Who can release payments, lead staff and communicate with customers? Which shareholding remains and which exit process applies? This test prevents an agreement from working only while the relationship is harmonious.
Legal review coordinates matrimonial, corporate and contract law with the implementation steps. Tax advisers and payroll specialists assess tax and social-security treatment, while the bank considers required consents and security. The end product should not be one vague umbrella document. It should be a coordinated package in which each role is governed in the correct place.
No. Work, marriage and share ownership have separate legal bases. An inter vivos transfer of an Austrian GmbH share requires a notarial deed under section 76(2) GmbHG. The articles may impose additional consent requirements.
Section 98 ABGB generally provides for appropriate compensation for contributing to the earnings of the other spouse. The legal basis and amount depend on the nature and duration of the work, the overall circumstances, any contract and the economic success of the business. An existing agreement must be reviewed first.
No. Personal separation does not automatically end a corporate office. Appointment and removal are governed by GmbHG and the articles. The managing-director agreement must also be addressed separately because the office and contractual claims are distinct.
It should define ordinary authority, reserved matters, information rights, escalation and an implementable exit process. The exit process particularly needs a valuation method, valuation date, payment schedule and appropriate security.
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