# Subrogation under Estonian insurance law (VÕS § 492) URL: https://insurancelawestonia.ee/estonian-insurance-contract-law/subrogation/ Author: Dr Olavi-Jüri Luik, Partner, Head of Insurance Law, attorney at law (Advokaadibüroo WIDEN OÜ) Last updated: 2026-11-09 > Statutory transfer of the insured's claim to the insurer under VÕS § 492: scope, waivers, family privilege, limitation. Subrogation is the main tool by which property and casualty insurers recover what they have paid. In Estonia it operates by statute. This page explains the doctrinal framework; the practical side (who to sue, evidence, recovery against carriers, contractors and liability insurers) is covered in the [subrogation and recovery guide](https://insurancelawestonia.ee/guides/subrogation-recovery-estonia) and on the service page [subrogation and recovery](https://insurancelawestonia.ee/services-for-insurers/subrogation-and-recovery). The Supreme Court has decided more than fifteen cases on subrogation and recourse; they are summarised on the page [Supreme Court: subrogation and recourse](https://insurancelawestonia.ee/supreme-court/subrogation-and-recourse). **Figure 1. Subrogation: transfer of the claim to the insurer** To the extent of the loss indemnified, the policyholder's or insured person's existing claim against a third party passes to the insurer (Law of Obligations Act (võlaõigusseadus, VÕS) § 492(1)). No new claim arises. _Examples_ (Example) | Insurer paid | Third party liable for | Passes to the insurer | Remainder | |---|---|---|---| | EUR 8,000 | EUR 6,000 | up to EUR 6,000 | nothing more can be recovered | | EUR 6,000 | EUR 8,000 | EUR 6,000 | EUR 2,000 claim stays with the policyholder, e.g. for the deductible | - **Waiver of the claim** (Statutory rule) If the policyholder waives the claim or a right securing it, the insurer is released to the extent it could have recovered under that claim or right (§ 492(2)). - **Family members** (Exception) Against the policyholder's ascendants or descendants, spouse, registered partner or another family member living with the policyholder, the insurer has these rights only to the extent that person's liability is insured, or if the person caused the loss intentionally (§ 492(3)). In motor insurance, recourse is available only against the persons and on the grounds specified in the Motor Insurance Act (liikluskindlustuse seadus, LKindlS) §§ 52–59. Legal basis: [VÕS § 492(1)–(3)](https://www.riigiteataja.ee/akt/120062026018). Statutory text checked against the version in force on 9 November 2026. ## 1. Transfer by operation of law (§ 492 lg 1) To the extent that the insurer compensates the loss, the claim for compensation that the policyholder or insured person has against a third party passes to the insurer (§ 492 lg 1).[^1] No assignment, subrogation receipt or letter of subrogation is needed, although such documents are useful as evidence of payment and of the scope of the indemnity. Key features: - **Indemnity insurance only.** Subrogation is part of the rules on indemnity insurance. It does not apply to sums insurance (life, fixed-sum accident) unless the contract provides for an assignment. - **Extent of payment.** The claim passes only to the extent of the indemnity paid. The insured keeps the remainder (for example the deductible and uninsured losses) and may pursue it in parallel. - **The claim stays the same.** The insurer acquires the claim with all its characteristics: its legal basis (contract or tort), the applicable law, defences available to the third party, limitation, and any jurisdiction or arbitration clause in the contract between the insured and the third party, to the extent such clauses bind an assignee under the applicable rules. - **Not to the prejudice of the insured.** By analogy to general principles, the transfer should not be asserted to the prejudice of the insured's own residual claim. Where the tortfeasor's assets or the liability insurer's limit are insufficient, the priority between the insured's residual claim and the subrogated claim is not expressly regulated in § 492 and is a matter of interpretation. ## 2. Waivers and releases by the insured (§ 492 lg 2) If the policyholder or insured person waives the claim against the third party, or a right securing the claim, the insurer is released from its obligation to the extent that it could have obtained compensation from the claim or right (§ 492 lg 2).[^1] In practice this affects: - **Contractual limitations and waivers of subrogation** in leases, construction contracts, logistics contracts and service agreements. A waiver agreed **before** the loss, in the ordinary course of business, is usually treated as part of the risk accepted by the insurer if it was disclosed or customary; a waiver **after** the loss triggers § 492 lg 2. The point depends on the contract and on disclosure; it should be checked in each case. - **Settlements by the insured** with the wrongdoer without the insurer's consent. - **Limitation of the wrongdoer's liability** by standard terms (for example in carriage or warehousing contracts), which the insurer must accept as part of the transferred claim. ## 3. Family privilege (§ 492 lg 3) A claim against a relative in the direct line, a spouse, a registered partner (*registreeritud elukaaslane*) or another family member who lives with the policyholder in the same household passes to the insurer only if that person's liability is insured or if he caused the damage intentionally (§ 492 lg 3).[^1] The provision is semi-mandatory (§ 427 lg 1). The reference to registered partners was added with effect from 1 January 2024 (RT I, 06.07.2023, 6).[^2] ## 4. Limitation of the subrogated claim The subrogated claim is subject to the limitation period applicable to the original claim: - **Tort claims**: three years from when the injured party learned or should have learned of the damage and the person liable (General Part of the Civil Code Act (*tsiviilseadustiku üldosa seadus*, TsÜS) § 150 lg 1), with long-stops in § 150.[^3] - **Contractual claims**: three years for claims arising from transactions (TsÜS § 146 lg 1); five years for construction defects in contracts for work (§ 146 lg 2).[^3] - **Carriage claims**: one year, or three years for intent or gross negligence, under the domestic carriage rules (VÕS § 802), with parallel rules in the CMR for international road carriage (see [cargo and CMR claims](https://insurancelawestonia.ee/guides/cargo-cmr-claims)).[^1] Whose knowledge counts (the insured's before payment, the insurer's after payment) has been addressed in the case law summarised on the [Supreme Court page](https://insurancelawestonia.ee/supreme-court/subrogation-and-recourse). Insurers should not assume that the period starts only on payment. ## 5. Subrogation and recourse distinguished Estonian practice distinguishes: - **Subrogation** (*nõude üleminek*): the insurer steps into the insured's claim against a third party (§ 492). - **Recourse** (*tagasinõue*, *regress*): the insurer's own statutory claim against its policyholder or another person, typically in compulsory liability insurance after paying the injured party although it was released towards the policyholder (§ 521 lg 2 and 5; in motor insurance the Motor Insurance Act (*liikluskindlustuse seadus*, LKindlS) §§ 52–59).[^4] - **Contribution** between insurers in multiple insurance (§ 486 lg 3) and between joint tortfeasors (VÕS § 137). The distinction matters for limitation, defences and evidence. ## 6. Cross-border aspects If the insured and the third party are in different countries, the question whether the insurer may pursue the insured's claim is governed by the law applicable to the insurance contract (art 19 of the Rome II Regulation for non-contractual claims; art 15 of the Rome I Regulation for contractual claims), while the claim itself remains governed by its own law.[^5] Under Estonian conflict rules, these EU rules take precedence. ## Related pages - [Subrogation and recovery in Estonia: practical guide](https://insurancelawestonia.ee/guides/subrogation-recovery-estonia) - [Subrogation and recovery services](https://insurancelawestonia.ee/services-for-insurers/subrogation-and-recovery) - [Enforcement of judgments and recovery](https://insurancelawestonia.ee/guides/enforcement-of-judgments-recovery) - [Supreme Court: subrogation and recourse](https://insurancelawestonia.ee/supreme-court/subrogation-and-recourse) - [Under-, over- and double insurance](https://insurancelawestonia.ee/estonian-insurance-contract-law/under-over-and-double-insurance) ## References [^1]: Law of Obligations Act (võlaõigusseadus, VÕS) §§ 137, 427, 486, 492, 521, 802. RT I, 20.06.2026, 18 (in force 01.09.2026). ; English: . [^2]: Amendment of VÕS § 492 lg 3, RT I, 06.07.2023, 6 (in force 01.01.2024). . [^3]: General Part of the Civil Code Act (tsiviilseadustiku üldosa seadus, TsÜS) §§ 146, 150. RT I, 31.12.2024, 48 (in force 01.01.2025). ; English: . [^4]: Motor Insurance Act (liikluskindlustuse seadus, LKindlS) §§ 52–59. RT I, 29.06.2024, 12 (in force 01.01.2025). ; English: . [^5]: Regulation (EC) No 864/2007 (Rome II), art 19. ; Regulation (EC) No 593/2008 (Rome I), art 15. .