What is a reserved portion?
Reserved portion is the entitlement of heirs who have been left out of a will or who have not received a donation (or property in another form) in an appropriate amount during the lifetime of the deceased. A legacy serves to protect the rights of the deceased’s next of kin from the effects of legacies or donations made by the deceased during their lifetime.
A person who is entitled to a reserved portion may demand – also before the court – the payment of a certain amount of money up to the amount of the reserved portion.
Who is entitled to a reserved portion?
According to Article 991 § 1 of the Civil Code, a reserved portion is due to the descendants (children and grandchildren), spouse and parents of the testator who would be called to the inheritance by law.
As a general rule, the reserved portion is half of the value of what the heir would have received under the statutory succession. However, if the beneficiary is permanently incapacitated or a minor, the reserved portion is 2/3 of that value.
EXAMPLE:
Jan Kowalski has three children: Anna, Barbara and Czesław. In his will, he bequeathed his entire estate to Anna. If Jan Kowalski had not made a will, each of the children would have equal rights to the inheritance (1/3 of the estate each). Upon Jan’s death, Barbara and Czeslaw can claim from Anna the payment of a reserved portion equal to 1/6 of Jan’s estate (1/3 x ½).
Disinheritance and reserved portion
The mere omission in a will of one of the legal heirs does not deprive them of the right to the reserved portion. In order to be deprived of the right to the reserved portion, the deceased should disinherit the heir in question in the will.
The right of disinheritance is vested in the testator when the person with a right to a reserved portion:
1) persistently acts contrary to the will of the testator;
2) has committed an intentional offence against life, health or liberty or gross contempt of honour against the testator or one of his closest persons;
3) persistently failed to fulfil family obligations towards the testator.
Amendments to the Civil Code
As of 22 May 2023, a new provision came into force – Article 9971 of the Civil Code. Pursuant to it, a person obliged to pay a reserved portion may request a postponement of its payment, spreading it into instalments and, in exceptional cases, reducing it, taking into account the personal and financial situation of the person entitled to the reserved portion and the person obliged to satisfy the claim for the reserved portion.
Deferment of payment or payment in instalments may take place in particular in situations where assets of considerable value remain in the estate which are difficult to monetise quickly (for example, real estate or a business) and, at the same time, the person liable for the reserved portion does not have the money to pay the reserved portion.
Payment in instalments may be deferred for up to five years and in exceptional, special cases up to ten years. Deferment of the payment of the reserved portion may also be for up to five years.
It is worth noting that the payment of the reserved portion in instalments or the postponement of the payment date will not take place in the judgment stating the obligation to pay the reserved portion. This will only take place at the request of the person obliged to pay the reserved portion. It is necessary to file a lawsuit in court for this purpose.
The criteria for the reduction of the reserved portion, introduced by the amendment to the Civil Code, are vague and leave a great deal of discretion to the court deciding the case. There is no exhaustive catalogue of situations in which it will be justified to grant the demands of the obligor to pay the reserved portion.
By way of example, it may be pointed out that the “personal situation” of the obligor of the reserved portion within the meaning of the new Article 9971 of the Civil Code may be advanced age, illness, disability, the need for constant care of another person or incapacity to work.
It should further be noted that the amendment to the Civil Code in question does not exclude the possibility of depriving a person of a reserved portion.
Pursuant to Article 5 of the Civil Code, the court may still deprive a person of the right to a reserved portion or reduce the amount of the reserved portion if the entitled person has behaved inappropriately towards the testator and violated the principles of social co-existence. However, deprivation of the right to the behaviour is possible in exceptional, particularly blatant cases.
This amendment to the Civil Code also covers pending cases not concluded before 22 May 2023. It is therefore possible to mount an additional defence against the conservatorship in these proceedings as well.
