When transferring assets to descendants or other close relatives, questions often arise as to whether it is more appropriate to use a gift, a lifetime support agreement, a usufruct agreement (preužitek), or another solution. In addition to tax aspects, the key issue is the inheritance-law consequence – whether the gift is taken into account in the estate and when calculating the forced share.
Gift Agreement
By means of a gift agreement, the donor transfers ownership to the donee free of charge. Key features:
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the donee becomes the owner immediately (for real estate, upon registration in the land register),
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as a rule, the gift is final; revocation is only possible in legally prescribed cases (e.g. gross ingratitude of the donee),
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in terms of inheritance law, gifts made to statutory heirs are, as a rule, imputed to their inheritance share.
Lifetime Support Agreement
Under a lifetime support agreement, the supporter undertakes to provide the supported person, until their death, with certain benefits and services (accommodation, food, care, etc.), while the supported person, in return, leaves certain assets to the supporter upon their death.
This is an onerous and aleatory (risk-based) contract; the assets covered by the agreement generally do not form part of the estate but pass to the supporter on its basis.
If the contract is merely ostensible and in reality disguises a gift, the heirs may challenge it and request that it be treated as a gift (and thus brought into account accordingly).
Usufruct / Maintenance Agreement
Under a preužitek agreement, the grantor transfers ownership of real estate to the transferee, who in turn undertakes to provide the grantor with maintenance until death (housing, food, care, etc.).
Conclusion
The choice between a gift and various contractual forms (lifetime support) has significant consequences for inheritance, the forced share, and relations among heirs.
