Legitimate portion: what is it and who is eligible to receive it?

A legitimate portion is a form of security for legal heirs. It is due to the testator’s closest relatives when they have been completely left out of the will. What is a right to a legitimate portion of an estate? How much is a legitimate portion? Who can claim their inheritance through a legitimate portion?

According to the current law, the basis for inheritance in Poland is a will. In a situation when a will has not been drawn up, the inheritance is received by statutory heirs as defined in the Act of 23 April 1964 – Civil Code. In the situation where in the will drawn up by the testator the statutory heirs have been omitted, they can claim their rights. Such an opportunity is given to them by the institution of a legitimate portion of the estate, according to which the statutory heirs left out of the will are entitled to receive financial payment in the amount determined by the fraction of the estate to which they are entitled. A legitimate portion may only take the form of a pecuniary payment. This means that a testamentary heir is not obliged to hand over any property belonging to the testator or to distribute the assets making up the estate. They are, however, obliged to pay the amount of money needed to cover the legitimate portion of the estate or to supplement it.

When and to whom is a legitimate portion due?

A legitimate portion shall exist where a person legally entitled to inherit has not received their share of the assets of the estate, whether by inheritance, bequest or donation made by the testator and included in the estate.

It should be borne in mind that the right to a legitimate portion is not granted to heirs who:

– persistently act contrary to the testator’s will,

– committed an intentional offence against life, health or freedom, or a gross insult to the dignity of testator or one their closest relatives,

– persistently fails to fulfill family obligations towards the testator.

In the above cases, the reason for disinheriting the person entitled to the reserved portion of the estate should arise directly from the will. At the same time, there is no entitlement to a legitimate share for:

– persons declared by a court decision to be unfit to inherit,

– persons who have rejected the inheritance,

– persons who have concluded an agreement with an heir to renounce the inheritance,

– a spouse against whom the testator, prior to their death, had applied for a decree of divorce or legal separation on their own account and the application was founded,

– a spouse who is separated from the testator.

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Kamil Jurczewski
Martyna B. Szczygielska
Prof. Marcin Jurgilewicz, Ph.D.
Wojciech Kępka-Mariański
Magdalena Nowosadzka