With a contract on support until death, one of the parties (the transferring party) is obliged to transfer ownership right in relation to some of its real estate to the other party (the successor), while the successor is obliged to provide the transferring party or another party with certain goods and services until the death of said transferring party or another party.

The successor may be a natural or legal person, while the transferring party may only be a natural person. Obtaining the consent of the descendants and spouse of the transferring party is not necessary for the conclusion of the contract. In addition, the successor may also assume the obligations for the benefit of a person who does not transfer their real estate to them, whereby such contract is concluded for the benefit of a third party (the beneficiary). In such cases, the spouse of the transferring party usually acts as the beneficiary.

On the side of the transferring party, the real estate is the subject of obligations under the law (but not necessarily). In addition to the real estate, movable properties intended for use of the real estate are also the subject of the contract under the law, unless otherwise agreed by the parties. The obligations of the successor may be agreed in the form of occasional cash benefits, the provision of consumer goods, care, the provision of housing, the release of a certain land for use, etc.

A contract on support until death may be based not only on the assistance and care provided in the future, but also on the assistance and care already provided in the past. It is essential that the motive for the transfer of ownership rights to the successor after the death of the transferring party lies in the benefits, services, assistance, and care provided for the transferring party.[1]

The contract on support until death is a strictly formal legal transaction, which must be concluded in the form of a notarial act. If the contract on support until death in question is not concluded in the form of a notarial act, such contract is considered null and void.

The essential feature of a contract on support until death is its aleatory (uncertain) nature: since the time of death of the transferring party is not determinable at the time of concluding the contract, the parties cannot know the extent of the future obligations of the successor. If the contract on support until death was not concluded pursuant to the rule of its aleatory nature, such contract is considered null and void.[2]

Another important feature of a contract on support until death is that the successor may also receive the assets in question before the death of the transferring party, i.e. from the time of conclusion of the contract, whereby this is usually what the parties agree to (that the assets are transferred to the successor upon the conclusion of the contract). This is an important difference compared to contracts on life-long livelihood, where the ownership rights are only transferred after the death of the annuity recipient. At the same time, the rights of the transferring party can also be protected by registering the assets in question in the land register, which means that the obligations of the successor are also transferred to any potential subsequent acquirers of the real estate.

If the contract is concluded between two persons who live together, and if their relationship deteriorates to a point where living together becomes unbearable, each of the contracting parties may request the contract to be terminated. The contract may also be terminated if either of the contracting parties fail to fulfil their obligations.

A contract on support until death may affect the succession to the estate of the deceased, seeing as their heirs may feel disadvantaged if the estate only contains little assets. It is possible to challenge a contract on support until death if it was not concluded pursuant to the rule of its aleatory nature or if the heirs wish to enforce the gift purpose of the deceased. Challenging such a contract is difficult, since a contract on support until death is a contract for pecuniary interest. In addition to the aforementioned cases, it is also possible to challenge a contract on support until death if defects in consent on the part of either contracting party are found, if any of the parties lacked operational capacity upon the conclusion of the contract (due to transferring party’s dementia), or if any of the parties forces or tricks the other party to conclude the contract.

If the Court finds that the contractual purpose of the parties at the time of concluding the contract was not the gift component but the conclusion of an aleatory contract for pecuniary interest, the succession effects of the contract through the application of the provisions on the deprivation of the rightful share are not applicable, nor is any ex-post calculation. The rightful heir can claim that the concluded contract is null and void because it was fictitious, that it was concluded in order to exclude the rightful heir from succession, and that it was, in fact, a gift in disguise. The rightful heir may also justify the invalidity of the contract with an inadmissible basis due to the immoral inclination of both contracting parties. However, in order to assess the real purpose of the parties, it is important whether the assessment of the benefit and obligation was determinable at the time of the conclusion of the contract and, if that was the case, whether an obvious disproportion between the benefit obtained and the obligation assumed already existed at the time of the conclusion of the contract.[3]

[1]Judgement of the Ljubljana Higher Court, case no. I Cp 223/2021 of 23 March 2021

[2]Judgement of the Supreme Court of the Republic of Slovenia, case no. II Ips 92/2020 of 20 January 2021

[3]Judgement of the Supreme Court of the Republic of Slovenia, case no. II Ips 1239/2008