Forced share in Poland
Forced share / fair share / zachowek
A forced share is a very interesting and complex concept of Polish succession law. It is a monetary claim that is due to the testator’s closest living relatives who, for any reason whatsoever, were not included in a last will and if the testator decided to award the entire inheritance to someone outside the family or to one family member only, or donate all their valuable real estate or property to someone else during their lifetime.
The right to a forced share is vested only in the testator’s children, grandchildren, spouse and parents who would be called to succession under the Polish laws of intestacy. It gives them the possibility to claim from the heir payment of the sum of money sufficient to cover or supplement the forced share they are entitled to.
Persons obligated to pay a forced share
There are three groups of people who are obligated to pay a forced share:
- heirs,
- legatees by vindication, and
- donees to whom a donation was made under a contract of donation.
Amount of a forced share
Descendants, spouse or parents who would be called to succession under the laws of intestacy have the right to claim a forced share in the amount equal to half of the value of the estate they would inherit according to the law.
If an intestate heir who is entitled to a forced share is permanently unable to work or a minor – they can claim a forced share amounting to two thirds of the statutory share of the estate.
In order to determine the amount of a forced share due to a forced heir, it is necessary to determine the share of the estate constituting the basis for calculating the forced share, expressed as a fraction. When calculating this share, unworthy heirs and heirs who disclaimed the inheritance are taken into account but not those who renounced the succession or had been disinherited.
When determining the amount of a forced share, the so-called forced-share fund is calculated, which is equal to the clear value of the estate plus donations. The clear value of the estate means the assets of the estate minus the estate debts, but including donations and legacies by vindication. It is irrelevant whether a donated thing still exists or whether it is still a part of the donee’s property. The value of a donated thing is calculated according to its condition when the donation was made and at the prices applicable when the right to a forced share was established. A legacy by vindication and donation made by the testator to a forced heir are counted towards the forced share due to them. If the forced heir is not the testator’s child but a more distant descendant, then the legacy by vindication and donation made by the testator to an ascendant of the entitled person are also counted towards the forced share due to the latter.
If a forced heir is a descendant of the testator, the costs of their upbringing and general and professional education incurred by the testator are included in the forced share due to them, provided that they do not exceed the average level accepted in the given milieu.
It should be noted that when calculating the forced-share fund, the following donations shall be excluded:
- minor gifts customarily accepted in relations of a given type (e.g., birthday gifts) regardless of when and to whom they were made;
- donations to persons who are neither heirs nor forced heir, such donations having been made more than ten years prior (counting backward from the opening of the inheritance);
- made when the deceased did not yet have descendants (if the forced share is calculated for a descendant). However, this shall not apply where the donation was made less than three hundred days before the descendant was born;
- made before marriage was concluded, if a forced share is calculated for the spouse.
After the donations and legacies by vindication are added to the clear value of the inheritance, the value so determined is multiplied by a fraction, which represents the amount of the forced share due to a forced heir.
What is important, a claim for a forced share passes to an heir of the forced heir, but only if such an heir belongs to the circle of persons entitled to the forced share from the original testator’s estate.
Avoiding a forced share
Many testators wonder how they can make a will without a right to a forced share so that the heirs do not have to pay it. In practice, it is almost impossible and occurs only in clearly defined situations. These include disinheritance, is possible when a relative persistently violates the principles of community life against the testator’s will. Another reason is the commission of an intentional crime against life, health or freedom or a gross affront to dignity with respect to the testator or one of the persons closest to them. Disinheritance may also take place when a forced heir persistently neglects their family duties towards the testator.
It should be noted that while disinheritance is a way for heirs to avoid paying a forced share, the grounds therefor listed in the will must be consistent with the facts. Otherwise, disinheritance will not produce the intended effect.
Statute of limitations and a claim for a forced share
A person seeking to claim a forced share of the estate may do so not later than 5 years from the reading of a will or the opening of an inheritance. Following this period, a claim for a forced share becomes barred by the statute of limitations.
DKP Legal
