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Attorney Milena Nowicka
How is the statutory share calculated? And what does it have to do with donations?
Why does the statutory share also apply to donations?
When is a statutory share due from a donation?
Which donations are not taken into account when calculating the statutory share?
Donations made more than 10 years ago – but only in certain cases
Minor, customary donations
Donations and the statutory share for family members – additional exclusions
When the beneficiary is a person entitled to a statutory share, i.e. offsetting the donation against the inheritance share
A claim for a statutory share or for supplementation of the statutory share
The statutory share is most commonly associated with situations in which a will has been drawn up and a given person has been omitted from it. However, not everyone realizes that a claim for a statutory share may also arise when no will has been made and inheritance takes place under statutory rules. This happens when the deceased disposed of most of their assets during their lifetime — in the form of donations. Such donation agreements are of great importance for statutory share claims.
The regulations clearly indicate that the statutory share is calculated taking into account not only the net value of the estate (the assets left by the deceased minus any debts). Other elements must also be considered — vindicatory legacies, the founder’s contribution to a family foundation made by the deceased, and assets related to the possible dissolution of a family foundation.
In practice, however, the last three elements rarely occur in inheritance cases. As a result, most cases come down to adding the value of the estate to the value of donations made during the deceased’s lifetime.
Example:
Let us assume that the deceased left an estate worth PLN 800,000. In addition, during his lifetime he donated PLN 200,000 to his wife. We want to calculate the statutory share due to the deceased’s son. Let us assume that it amounts to 1/4.
If the statutory share were calculated solely on the basis of the estate, the son’s statutory share would be PLN 200,000. However, since the value of donations must also be taken into account, the 1/4 share is calculated on the amount of PLN 1,000,000 (PLN 800,000 from the estate plus a PLN 200,000 donation). As a result, the statutory share due to the son amounts to PLN 250,000.
This leads to a simple conclusion: donations can have a significant impact on the amount of the statutory share that an entitled person may claim.
At this point, you may be wondering why donations are taken into account when calculating the statutory share at all.
This is because the institution of the statutory share is intended to protect the interests of the deceased’s closest relatives. The legislator assumed that such persons should receive a certain minimum guaranteed by law — even if this is not fully consistent with the will of the deceased.
If such regulations are unacceptable to the deceased and there is no possibility of disinheriting a person entitled to a statutory share, the most obvious solution may seem to be disposing of one’s assets in such a way that the remaining estate is minimal and the entitled person receives as little as possible.
Example:
Let us assume that the future deceased owns two properties, each worth PLN 450,000. In addition, he has savings and movable property with a total value of PLN 150,000.
The deceased has a son, a daughter, and a wife. However, he does not want his son to receive any assets after his death. He cannot, however, disinherit his son or bypass statutory share regulations.
He therefore decides to donate one property to his wife and the other to his daughter. Although he will still leave an estate worth PLN 150,000, the son will inherit only one-third of that amount. This is significantly less than he would receive if the properties were part of the estate.
It is precisely to prevent such attempts to circumvent statutory share provisions (which would effectively reduce the statutory share of entitled persons) that the legislator introduced rules requiring donations to be taken into account when determining the statutory share.
Not every beneficiary of a donation will be obliged to pay a statutory share. Much depends on how much the entitled person received after the deceased’s death.
We explain the detailed calculation rules in a separate blog post, which also answers the question of what a statutory share is. Here, we will limit ourselves to the most important information.
Once the value of the statutory share has been calculated, it must be compared with the value of the assets received by the entitled person. If the statutory share due exceeds the assets received, the entitled person may claim payment of the missing amount. If it cannot be obtained from the heirs, the claim may be brought against the recipients of donations. For example, if the statutory share due to the son amounted to PLN 250,000, but he received only PLN 100,000 from the estate, he could claim supplementation of the statutory share, i.e. payment of the remaining PLN 150,000.
Although donations can have a major impact on the statutory share, not every donation is relevant in inheritance cases. There are three categories of donations that are not included when calculating the statutory share.
Some donations made more than 10 years prior to the deceased’s death are not included in the statutory share calculation. However, this rule applies only to donations made to persons who are neither heirs nor entitled to a statutory share.
If a person is entitled to a statutory share (i.e. is a spouse, descendant, and in some cases also a parent of the deceased) or belongs to the circle of heirs, the timing of the donation does not matter. Even if the donation was made several decades earlier, it is still added to the estate when calculating the statutory share.
Minor donations — such as birthday gifts, gifts for special occasions, or pocket money — are also excluded from the statutory share base. Naturally, the question arises as to what qualifies as a “minor” donation. In this respect, it is important to determine whether such gifts can be considered “customary in the given social context.”
The law also introduces additional rules for donations made to family members at a time when they were not yet part of the immediate family circle. As a result, when calculating the statutory share for a spouse or for descendants (children, grandchildren, etc.), certain donations may not be taken into account.
The regulations introduce yet another rule that can make calculating the statutory share on one’s own quite complex.
The legislator assumed that it does not matter in what form the entitled person received assets corresponding to the statutory share — whether as part of the estate, as a vindicatory legacy, or as a donation.
Put simply, when determining whether and to what extent a statutory share is due, the calculated amount must be reduced by, among other things, the value of donations made by the deceased to that person.
What does this mean in practice? If a person entitled to a statutory share received a substantial donation from the deceased and was completely omitted from the will, they may not be entitled to any statutory share at all, or the share may be minimal. This is because the law considers the statutory share to have been partially or entirely satisfied through the donation.
What happens if an entitled person concludes that they have the right to claim a statutory share from individuals who received donations? They should first demand voluntary payment. If this is unsuccessful, they must file a lawsuit for the statutory share. However, this must be done within a limited time frame — claims for a statutory share become time-barred five years after the opening of the estate.
Even if the claim is asserted within the statutory period, this does not necessarily mean that payment will be required. The regulations provide for several situations in which payment can be avoided. These cases are complex, however, and it is generally not advisable to act independently. Errors or oversights resulting from a lack of legal knowledge can have serious financial consequences, which is why it is so important to seek assistance from an experienced inheritance law attorney.
