Polish civil law recognises the principle of freedom of testation, which centres mainly on the autonomy of the testator’s will and the possibility of disposing of their entire property in favour of any person. In some cases, however, freedom of testation is limited: the testator’s will must be expressed in a manner provided for by law, and the testator must use the legal constructs recognised by statute. An indirect limitation on testation is also the reserved share (zachowek).
What is the reserved share and who can receive it?
The testator may leave their property to any person or institution at their own discretion, passing over their closest relatives. The legislator, however, has created an institution that gives the testator’s closest relatives the possibility of pursuing a claim to part of the estate, namely the reserved share. Those entitled to the reserved share include the spouse, the descendants (children, grandchildren, great-grandchildren) and the parents of the deceased who would have been called to the inheritance by statute. The exercise of the right to the reserved share depends on whether the person pursuing the claim would have been called to the inheritance as a statutory heir. If the persons mentioned above have not received the reserved share due to them — whether in the form of a gift made by the deceased in their favour, or by being appointed to the inheritance, or in the form of a bequest, or a benefit from a family foundation or property in connection with the dissolution of a family foundation — they may pursue against the heir a claim for payment of a sum of money covering the reserved share due to them, or of a sum of money needed to supplement it.
Who is not entitled to the reserved share?
Under the general rules of civil law, the following are deprived of the right to the reserved share: persons declared unworthy by a court and persons disinherited by the testator in the will. The reserved share is also not due to persons who have waived the inheritance before a notary or who have rejected the inheritance. Furthermore, in accordance with the general rules of civil law, the reserved share will not be due to a spouse who, at the time of the testator’s death, was legally separated from them, or to a spouse against whom the testator had filed a petition for divorce or legal separation due to that spouse’s fault, where the petition was justified.
Limitation of the claim to the reserved share
Claims arising from the reserved share become time-barred five years after the will is announced in court or before a notary. The following become time-barred five years after the opening of the succession, i.e. from the moment of the testator’s death:
- claims against a person obliged to supplement the reserved share on account of gifts or specific bequests received from the deceased,
- claims against a family foundation obliged to supplement the reserved share,
- and claims against a person obliged to supplement the reserved share on account of property received upon the dissolution of a family foundation.
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