The legal framework for succession planning varies from country to country. The differences may be limited to formalities or they may be sometimes substantive. One of the important differences is the so called "forced heirship" (zachowek). In the US and the UK, persons have freedom of will to choose the beneficiaries of their estate by way of gifts, will or trusts with almost no limitations. Under this freedom, a person can generally include or exclude any person from his or her inheritance.
This liberty does not exist in civil law countries like Poland. Poland restricts the exercise of freedom of will through the inclusion in the law of forced heirship (zachowek) provisions. These provisions allow a person to dispose freely only a portion of its assets and require transfer of the remaining assets to persons known as "forced heirs" (usually spouse, descendants and ancestors). In addition, to prevent the circumvention of these provisions during lifetime, gifts and donations are also be subject to the same rules. Any transfer during lifetime or upon death in violation of these limits can be reclaimed by the forced heirs.
Forced heirship
The forced heirs, under Polish law, are defined as spouse, descendants and ancestors of the deceased. The forced heir has the right to a portion of the estate in accordance with statutory rules. The amount of the forced share due to an entitled person is equal to half of the value of the share that would have accrued to them under statutory succession. However, if the entitled person is aminor or aperson permanently unable to work, the forced share is two-thirds of what the statutory share would have been.
There is acommon misunderstanding that an heir is entitled to aforced share of the estate only in the event of testamentary succession. This is not true. The forced heirship provisions apply also to statutory succession when the deceased left no Will.
The possibility of claiming aforced share of astatutory succession most often occurs in situations where the total value of the gifts or specific bequests given by the deceased during his lifetime is much higher than the value of the estate left to be acquired. This is particularly the case if the deceased disposed most of his property through gifts or specific bequests so that after death there is little or no value left in the estate.
Claims to court for having been left aside in the deceased's Will or in donations
A spouse or child of the deceased who have been left aside in the Will or omitted in the donations made by the deceased during his lifetime, is allowed to bring a claim to court for having been left aside. They are allowed to claim the payment of the forced share from the legal heirs which is calculated in accordance with statutory rules.
The claim for the forced share should be filed with the court where the deceased had his last domicile before death. This is a very important exception from the general rule in the Polish law that the statement of claim should be filed with the court which is appropriate for the defendant's domicile. If the deceased did not live in Poland, it will be the court appropriate for the location of the property.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
