It is often assumed that a forced share of an inheritance is only valid if the succession is based on a will. But the Polish Civil Code does not preclude heirs from seeking a forced share when succeeding under the code. This applies primarily to situations where the testator gave away significant portions of his property or made a specific bequest of them.
A decedent’s descendants, spouse and parents are entitled to a forced share of the estate (in Polish zachowek, a notion sometimes referred to in English as “legitime”) in the case of both statutory succession and succession under a will. The forced share is equal to a designated portion of the inheritance the person would have received through succession pursuant to the Civil Code.
There is a common misunderstanding that an heir is entitled to a forced share of the estate only in the event of testamentary succession. This misunderstanding is based on a selective reliance on the wording of Art. 991 §1 of the Civil Code, according to which a forced share is due certain persons who “would” have inherited under the code. But the use of the conditional here does not exclude the possibility of seeking a forced share in the case of statutory succession, particularly as this provision does not exhaustively define the right to a forced share. It is complemented in §2 of the same article, under which these entitled persons have a claim to a forced share if they did not receive that portion of the estate from the decedent by gift, bequest, or appointment. In the case of appointment, the code does not specify whether the succession is statutory or testamentary. Thus, a claim for a forced share may also be made by entitled persons inheriting under the code if (for example due to a gift or specific bequest) they do not obtain the equivalent of the forced share from the estate. So to assess the possibility of applying for a forced share when also receiving a statutory inheritance, it is necessary to know how to calculate the amount of the forced share due and the situations in which statutory heirs can typically claim a forced share.
Method of calculating the amount of the forced share
Under Polish law, a claim for a forced share is always a claim for payment of a certain amount of money.
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 a minor or a person permanently unable to work, the forced share is two-thirds of what the statutory share would have been. To correctly calculate the forced share, it is necessary to:
- Determine the set of heirs who would have inherited the estate if statutory succession had taken place
- Determine the inheritance share
- Calculate the forced-share fund (substrat zachowku), and
- Determine the amount of the forced share using the calculations described below.
The forced-share fund is the sum of the clear value of the succession and gifts and specific bequests made by the decedent. The clear value of the succession is the difference between the assets and debts of the estate. But the debts do not include liabilities arising from bequests or instructions, as well as debts arising from forced shares. Thus, on top of the clear value of the succession determined in this way should be added, for example, gifts made by the testator to heirs and those entitled to a forced share, as well as other persons. But gifts made at least 10 years before the testator’s death to persons who are not heirs or entitled to a forced share are not taken into account when determining the amount of the forced share. Therefore, this 10-year limitation on adding gifts back into the clear value of the succession does not apply to gifts made by the testator to heirs or those entitled to a forced share. As a result, all dispositions made by the decedent without consideration to the aforementioned categories of beneficiaries are to be added back in when determining the forced-share fund, regardless of how much time has elapsed since they were made.
Once the forced-share fund has been established and the inheritance shares and the amount of the forced share have been taken into account, the value of the forced share due can be estimated. Then, for each person apparently entitled to a forced share, everything they have received from the testator must be deducted from it, i.e. the value acquired in the succession, general or specific bequests, and gifts received during the testator’s lifetime. This calculation will yield the amount of the forced share remaining to be claimed.
To sum up this aspect, to calculate the value of the forced share due, first the clear value of the succession, gifts and bequests made by the testator must be added up when calculating the forced share. Then, on this basis, the value of the forced share portion for each of the entitled persons must be determined, and the value of everything the entitled person received from the testator by appointment, bequest or gift subtracted from that figure.
Most frequent claims for a forced share in the case of statutory succession
The possibility of claiming a forced share of a statutory succession most often occurs in situations where the total value of the decedent’s gifts or specific bequests is much higher than the value of the estate left to be acquired following the Civil Code. This is particularly the case if the decedent disposed of a great deal of his or her property through gifts or specific bequests so that after death there is little or no value left in the estate. In turn, the absence of a general appointment as an heir in a will results in acquisition of succession under the code by the decedent’s closest relatives, and they include the same persons who are entitled to a forced share.
In such cases, after the calculations referred to in the previous part of this article have been carried out, the value of the forced share will exceed the value of the inheritance share to be received by the statutory heirs who are entitled to a forced share. This surplus is the amount of the forced share which the statutory heirs are entitled to pursue, or, more precisely, the claim to supplement the forced share they are entitled to. The most common situation is where the decedent made gifts or specific bequests to family members who also belong to the group of statutory heirs entitled to a forced share. In this arrangement, claims to supplement one statutory heir’s forced share may be asserted against another statutory heir. But there are also cases where the recipients of gifts or specific bequests who may be required to contribute to forced shares did not succeed under the code.
Contrary to widespread opinion, a forced share may also apply in statutory succession. The main criterion in determining the right to pursue claims to a forced share is not the manner of succession (statutory or testamentary), but a comparison of the value of what the person entitled to a forced share actually received from the decedent with the value of the forced share he or she is entitled to after appropriate calculation of the forced-share fund. If the value received is less than the value of the forced share owed, the difference can be claimed in the case of both statutory and testamentary succession. When claims to a forced share are asserted in the case of statutory succession, those entitled to seek a forced share are also statutory heirs. They have a claim to make up the difference between the forced share they are entitled to and the amount received through statutory succession.
Radosław Wiśniewski, adwokat, Reprivatisation practice, Private Client practice, Wardyński & Partners