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French inheritance documents in Polish reprivatisation proceedings

Reprivatisation cases require identification of all the former owners of the property as well as their legal successors. Thorny problems can arise when inheritance documents from France are involved.

The need to rely on French inheritance documents in Polish reprivatisation proceedings is dictated by historical considerations. Due to traditionally strong ties between France and Poland, many French citizens owned real estate in Poland before the Second World War, and after the war those properties underwent nationalisation in various forms. The unstable political and economic situation of Poland after 1945 also sparked waves of emigration to France. So when determining all of the owners of nationalised property and their legal successors, the trail often leads to France. This makes it necessary to rely on French inheritance documents in Polish reprivatisation proceedings, which in turn creates certain difficulties for Polish courts, administrative offices, and counsel.

This is largely because of the significant differences between French and Polish inheritance law. And in France, inheritance rights are certified through a deed prepared by a notary (acte de notoriété en matière successorale), the content of which sometimes cannot be directly applied in Polish administrative or judicial proceedings. In order to make proper use of a French deed certifying inheritance in Polish proceedings, it is necessary to have an awareness of the fundamental differences between Polish and French inheritance law and to be familiar with the terminology used by French notaries in preparing these deeds.

French inheritance law

While it is impossible to describe all of the characteristic features of French inheritance law in such a brief article, it should be stressed that the inheritance rules in France differ greatly from those in Poland. For example, in France it was not until December 2001 that the inheritance rights of illegitimate children were equalised with those of legitimate children, and at the same time protection was extended to a surviving spouse where the decedent left living descendants (La loi n° 2001-1135 du 3 décembre 2001 relative aux droits du conjoint survivant et des enfants adultérins et modernisant diverses dispositions de droit successoral, JORF n° 281 du 4 décembre 2001 page 19279). Certain historical relics remained in place for so long in France because the Code civil des Français from 1804—or the Napoleonic Code as it is commonly known—is still in force. (The Napoleonic Code used to be applied in Polish lands, too. It was adopted and followed in the Duchy of Warsaw, Congress Poland, and the free cities of Danzig and Cracow. The proposals for Poland’s inheritance rules in Book Four of the Civil Code from 1954, 1955 and 1960 were originally modelled on the French rules, but ultimately it was decided to adopt solutions drawn from the German civil law tradition.)

The main difference between French and Polish inheritance law, causing the most problems in practice, is the form of protection of the closest family members in the case of inheritance by will. The form of “forced share” adopted in Poland is known as zachowek, while the form followed in France is the réserve (or réserve héréditaire—sometimes referred to in English as “legitime”). Under the réserve system, if the decedent made any disposition upon death (such as a will or gift), then when the estate is opened—i.e. as of the time of the testator’s death—the decedent’s estate is divided into two portions:

  • The “global reserve” (réserve globale)—the portion which is not disposable by will but is set aside for the decedent’s closest family members regardless of whatever disposition upon death was made by the testator, and
  • The disposable portion (quotité disponible)—the portion of the estate which the testator could freely dispose of in the event of death.

Currently, the amount of these two portions depends on the number of surviving descendants at the time of death, or if there are no surviving descendants, then whether the testator was survived by a spouse. The proportions of these two parts of the estate are broken down as follows:

Surviving relatives Amount of “global reserve” Amount of disposable portion
One child 1/2 of the estate 1/2 of the estate
Two children 2/3 of the estate 1/3 of the estate
Three or more children 3/4 of the estate 1/4 of the estate
Spouse and no descendants 1/4 of the estate 3/4 of the estate


The differentiation in the amount of the réserve leads to separation of this part of the estate into specific shares, known as “individual reserves” (réserves individuelles) for the particular heirs entitled to share in the réserve (héritiers réservaitaires). In practice, this results in shares being established in relation to the overall réserve globale, with the shares to which the descendants are entitled always being equal. This does not apply however to the surviving spouse, whose réserve individuelle will always be equal to the réserve globale. However, if a child did not survive the testator, that child’s réserve individuelle will be shared in equal portions by that child’s descendants who survived the testator.

Apart from this, if the testator is survived by ancestors or descendants, the surviving spouse is entitled to:

  • A right of usufruct of the entire estate, or ownership of 1/4 of the estate, at his or her election, if the testator’s surviving children are the children of the testator and that spouse, or
  • Ownership of 1/4 of the estate, if the testator left other offspring who are not children of the surviving spouse.

Another noteworthy feature that is controversial under Polish law but exists in France is the gift in the event of death, particularly between spouses (donation entre époux). An interspousal gift agreement is typically concluded together with the contract of marriage or shortly thereafter in order to ensure the spouse the broadest rights to the estate if the other spouse dies leaving surviving ancestors or descendants. As pointed out above, in such a situation the surviving spouse normally could count on receiving ownership of at most 1/4 of the estate. So to increase the surviving spouse’s share of the inheritance, the spouses conclude an agreement on gift in the event of death, under which the surviving spouse may be given one of the following:

  • Ownership of the entirety of the disposal portion of the estate
  • Ownership of 1/4 of the estate and usufruct of the remaining 3/4 of the estate, or
  • Usufruct of the entire estate.

In practice, in such gift agreements the spouses include all three of these options, and then the surviving spouse elects between them after the other spouse’s death. Because of the necessity to make an election between rights, the surviving spouse has statutory rights as well as rights under a disposition in the event of death in the form of the interspousal gift. If the surviving spouse does not make an express choice, there is a legal presumption that the spouse elected usufruct of the entire estate.

Use of French inheritance certificates in proceedings in Poland

By way of introduction, it should be pointed out that French inheritance certificates, although taking the form of a notarial deed, should be treated analogously to rulings by foreign courts in civil cases. Under the current wording of Art. 1145 of Poland’s Civil Procedure Code, rulings issued by foreign courts in civil cases are subject to recognition by operation of law. So in order to use a French inheritance certificate for the purpose of Polish judicial or administrative proceedings, it is sufficient to submit the deed certifying the inheritance with an apostille clause and a sworn Polish translation. However, pursuant to Art. 8(5) and 9 of the Act of 5 December 2008 Amending the Civil Procedure Code and Certain Other Acts (Journal of Laws Dz.U. 2008 No. 234 item 1571), the regulations of the Civil Procedure Code on recognition of foreign judicial rulings in force prior to 1 July 2009 must be applied to any rulings of foreign courts—including by analogy foreign notarial deeds—issued prior to 1 July 2009. In other words, for French inheritance certification deeds issued prior to 1 July 2009 to exert legal effects in Poland, they must be recognised through recognition proceedings conducted under the relevant provisions of the Civil Procedure Code in force before that date. Only then can such a deed from France be given effect in Poland.

However, the use of French inheritance certification deeds in Polish courts and administrative offices can raise doubts concerning the shares held by specific heirs. This is because in the deed, the notary only states the shares of the individual reserves, which are determined with respect to the global reserve and not with respect to the overall estate. Consequently, the only shares referred to in the French inheritance certificates are the shares of individual reserves, which must not be confused with shares in the estate as such. Moreover, in French notarial inheritance certifications, apart from the statement that the given heir entitled to a réserve holds a certain share, there is no explanation of how the share is calculated or information on how the share of the réserve individuelle relates to the share in the estate as a whole. Therefore, when using such deeds in Polish proceedings, it is sometimes necessary to provide additional information on the French réserve system and how the shares stated in the notarial deed are calculated.

Imagine for example that the decedent made a disposition of his or her assets in the event of death in the form of a will or other disposition, and left three surviving children. In the French inheritance certificate, the notary will identify them as heirs entitled to a réserve of 1/3 each. This is the amount of each heir’s réserve individuelle. Because the réserve globale accounts for 3/4 of the estate, each child’s share in the overall estate is in fact 1/4. The remaining 1/4 of the estate is the disposable portion, which the testator could freely dispose of in the event of death. If this is not explained, errors can often be committed in determining the shares in the estate held by specific heirs, and this leads in turn to errors in Polish reprivatisation proceedings in determining the shares in the regained property or compensation which specific heirs are entitled to receive.

The issue of the inheritance rights of a surviving spouse often proves problematic as well. Because the form and scope of these rights primarily depend on an election made by the surviving spouse, sometimes it is necessary to apply the presumption that the spouse elected usufruct of the entire estate. The French Civil Code provides for this presumption when the surviving spouse did not express an intention in this respect. Nonetheless, the surviving spouse does not have to take a position on this issue when the inheritance certificate is being drawn up by the French notary, but can make that election much later. Therefore, if there is no information in the French inheritance certification deed on the election made by the surviving spouse, for definitive determination of the inheritance rights held by the surviving spouse all of the circumstances of the case must be considered, and then if necessary the legal presumption of election of usufruct of the entire estate can be applied.


The specifics of French inheritance law and the complexities connected with confirming rights to a decedent’s estate in France can generate difficulties and errors when using a French inheritance certification deed with a Polish translation in Polish judicial and administrative proceedings. The réserve system and the complicated regulations governing the inheritance rights of spouses in France can make it hard to carry French inheritance deeds over into the Polish legal system. Therefore particular caution is required when using French inheritance documents in Polish reprivatisation cases, because they will determine the shares particular heirs are entitled to receive in regained property or compensation.

Radosław Wiśniewski, Reprivatisation Practice, Wardyński & Partners