In the media, we can follow cases of a small studio apartment in Gdansk and the “selfless” help offered to its owner by a certain “good person.” On this occasion, which must be considered beneficial from the perspective of legal awareness, we are all taking an accelerated course in such institutions of civil and criminal law as:
- donation,
- life estate agreement,
- disinheritance,
- false certification in a notarial deed.
Essentially, it is a course in: “how NOT to carry out the above legal transactions” and not get into legal trouble.
In this post, I would like to address one of the above legal issues, namely depriving heirs of their right to inheritance, i.e. disinheritance. This is because in practice, contrary to popular belief, this is not at all a simple legal institution. Moreover, in the practice of establishing and managing family foundations, I quite often encounter the question: “how to effectively not pass assets to statutory heirs.” It is therefore worth looking closely at how the regulations govern this rather rare legal situation in practice.
Who can be disinherited
Disinheritance, i.e. depriving heirs of their right to inheritance (reserved share), is regulated in Art. 1008 of the Civil Code (CC), which reads as follows:
The testator may in a will deprive descendants, a spouse, and parents of the reserved share (disinheritance) if the person entitled to the reserved share:
- Persistently acts contrary to the principles of social coexistence against the will of the testator.
- Has committed an intentional crime against the life, health, or freedom of the testator or one of the persons closest to them, or a serious insult to their honor.
- Persistently fails to fulfill family obligations towards the testator.
This specific entitlement available to the future testator stems from the fundamental legal and social principle on which Polish inheritance law (and presumably most inheritance law systems known to us) is based. It concerns the principle that after the death of a person (testator), their closest relatives have the right to receive their assets (usually in a certain part). Even against the will of the testator themselves.
This is de facto a limitation of property rights and the associated right to freely dispose of one’s assets. According to this principle, the testator after death may dispose of their assets only within certain limits defined by the social order, which accepts that the testator’s assets, post mortem, in whole or in large part should go to their closest family.
The practical legal effect of this social principle is the so-called right to a reserved share. It means, in simplified terms, that regardless of what the testator did with their assets at the end of their life, however they disposed of them in a will, certain persons defined by law have the right to a specific part of the estate – the “reserved share.” The German name for this institution, “Pflichtteil,” which literally translates as “obligatory part,” more accurately reflects its nature.
According to Art. 991 CC, the following are entitled to the reserved share: descendants (children), spouse, and parents of the testator, provided they would be called to inherit by statute, with a share ranging from one-half to two-thirds of the statutory share in the estate (depending on certain additional conditions).
Legal conditions for disinheritance
Returning to the main thread, disinheritance has precisely the effect that heirs are not so much deprived of the entire inheritance (here the testator has some decision-making power), but that they are deprived of the right to that “obligatory part” of the estate guaranteed by law – the reserved share.
Polish inheritance law provides that the testator, in order to disinherit a specific person from the circle of heirs, must have a serious reason justified in light of the principles of social coexistence. According to Art. 1008 CC, these are:
- When the heir persistently acts contrary to the principles of social coexistence against the will of the testator.
- When the heir has committed an intentional crime against the life, health, or freedom of the testator or one of the persons closest to them, or a serious insult to their honor.
- When the heir persistently fails to fulfill family obligations towards the testator.
The indicated prerequisites constitute the only permissible grounds for disinheritance, and it should be emphasized immediately that they must be interpreted strictly. In other words, in the judicial practice of inheritance cases involving disinheritance, it is not acceptable to stretch the prerequisites for disinheritance to cover typical family conflicts, differences of opinion, disputes that are nothing extraordinary in family life.
What do courts say in disinheritance cases
It is noteworthy in the Civil Code provisions regulating disinheritance that the prerequisites for the testator’s application of disinheritance are formulated quite generally and refer to such vague definitions as “principles of social coexistence” or “the heir persistently violates.” It is precisely these formulations that cause the most frequent doubts and disputes in disinheritance cases, which are ultimately resolved in court.
In particular, the issue of “persistent failure to fulfill family obligations towards the testator” and the issue of the testator’s possible contribution to this often raises doubts and can be said to regularly be the subject of court rulings.
Case law indicates that “persistent failure to fulfill family obligations towards the testator” constituting grounds for disinheritance is long-term or repeated neglect of the testator’s material and emotional needs. An obvious example is the failure to perform maintenance obligations or lack of support and care in the event of the testator’s illness, but also the lack of maintaining any family contacts with the testator and interest in their fate.
However, it should be added here that courts have repeatedly indicated that “persistent failure to fulfill family obligations” does not include failure to maintain contacts between the heir and testator if this results from the attitude of the testator themselves. In other words, to apply disinheritance, the long-term failure to fulfill family obligations towards the testator must be caused by circumstances on the side of the heir, not on both sides.
Interestingly, German disinheritance provisions (Enterbung) contain two additional prerequisites for its application that are not found in Polish regulations. These concern the situation where the disinherited person has been finally convicted of a serious crime to imprisonment of one year or more without suspension, or has been committed to a psychiatric institution for such a crime (Art. 2333 BGB).
What to do in case of unjustified disinheritance
In practice, disinheritance is usually no secret or surprise to the interested parties. They are aware of the state of their family relations. My advice: wait calmly, monitoring the situation, gathering information and documents about the assets we believe we are entitled to by way of the reserved share. When we learn of the testator’s death (only then do the claims of persons entitled to the reserved share become current), this is the moment when we can file with the court an application to join the proceedings for declaration of inheritance, indicating our legal title and arguments.
If we miss the opening of these proceedings, within five years from the announcement of the will (opening of the estate), we can file a claim against the persons who assumed the estate for the transfer to us, as a person entitled to the reserved share, of the appropriate part of the estate or its property equivalent, pointing to the unjustified, erroneous disinheritance.
Paweł Osiński
Attorney