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Attorney Milena Nowicka
Step 1: To calculate the amount of the forced share, first verify the rules of intestate succession
What does succession in the first order of intestate heirs look like?
What does succession in the second order of intestate heirs look like?
Determine whether a given person would inherit by operation of law and what their statutory share would be
Step 3: Multiply the determined statutory share by the forced share base
Step 4: Determine the amount of the forced share
How is the forced share calculated and how much will it amount to? At first glance, the answer to this question may seem very simple. After all, there are only a few statutory provisions governing the determination of the forced share. However, as is often the case in law, a small number of provisions in fact describe a complex procedure. In order to correctly calculate the amount of the forced share due, several fairly complex steps must be followed. Each of them is explained in detail in this article.
The starting point both for determining the amount of the forced share and for verifying who is entitled to it at all is establishing how succession would proceed under intestate succession, i.e. in the absence of a will.
Importantly, this step must be carried out regardless of whether the deceased actually executed a last will or not. Even if the heirs are designated in a will, determining the rules of intestate succession remains relevant. It is precisely on their basis that the forced share is calculated.
Under intestate succession, heirs are divided into groups (orders). As a rule, only the first group may inherit initially. If this proves impossible, the right to inherit passes to the second group, and so on. However, persons entitled to the forced share are found only in the first and second groups. Accordingly, only these groups are relevant when determining the amount of the forced share.
Succession within the first order takes place on the condition that the deceased has descendants (children, grandchildren, etc.) who are willing and able to inherit.
In the first instance, the spouse of the deceased and the closest descendants, i.e. the children, inherit. Only if a child is unable or unwilling to inherit does their share pass to their own children (the testator’s grandchildren). This means that in many cases the grandchildren of the deceased will not receive any inheritance at all.
As a rule, the heirs’ shares are equal, subject to the proviso that the spouse of the deceased must receive at least one quarter of the estate. Therefore, if there are at least four children, the spouse receives one quarter of the estate, and the remaining three quarters are divided equally among the children.
If the deceased has no descendants, or if they are unwilling or unable to inherit (for example, they have been disinherited, deemed unworthy of inheritance, have rejected the inheritance, have predeceased the testator, or have waived their inheritance rights), the estate is divided between the spouse of the deceased and the deceased’s parents. The spouse receives one half of the estate, while each parent receives one quarter. If one of the parents is deceased or unable to inherit, their share passes to their children (the siblings of the deceased).
The right to the forced share is vested in the spouse, descendants, and parents of the testator, but only if they would inherit by operation of law. Thus, for example, if you wish to receive a forced share after your deceased child, you must establish whether, under intestate succession, the inheritance would fall to the second group. If the deceased’s children or grandchildren are alive, succession takes place within the first group. In that case, the estate would not pass to you, and consequently you would not be entitled to a forced share.
Another important issue is determining the size of your statutory share. At this stage, you are not yet dealing with specific amounts, but only with a fraction.
Example: The deceased left behind a wife and two children. Under the statutory rules, these three persons would inherit the estate in equal shares. This means that the spouse and the children of the deceased are entitled to the forced share, but not the grandchildren or parents, as they would not inherit under intestate succession in this situation. It is also clear that the estate is divided into equal parts. The statutory share of the wife and each child therefore amounts to one third.
Once the statutory shares have been determined, the next step is to calculate the forced share base, i.e. the specific monetary amount forming the basis for the calculation of the forced share.
The forced share base consists of:
Example: The testator left an estate worth PLN 500,000 and debts amounting to PLN 50,000. In addition, he donated a building plot to his daughter, the current value of which is PLN 600,000. He did not establish any vindicatory legacies or a family foundation.
In this situation, the forced share base consists of the net value of the estate, i.e. PLN 450,000 (estate minus debts), plus PLN 600,000 representing the value of the donation – in total PLN 1,050,000.
While in the above example determining the forced share base may appear simple, in practice this is rarely the case. Real family situations are usually far more complex. Matters are further complicated by the method of valuing donations: their condition at the time of transfer to the donee is relevant, but their price as at the time of determining the forced share.
As a result, identifying the elements that should be included in the forced share base and determining their value may prove to be extremely difficult. Individuals without legal education and professional experience often make mistakes in this respect. For this reason, when determining either the forced share due to you or a forced share payable to another person, it is advisable to consult an attorney specialising in succession law.
Next, the forced share base should be multiplied by the share that would be due to the entitled person under intestate succession. In this way, you will obtain a concrete monetary amount. For example, if your share were one third and the forced share base amounted to PLN 900,000, the result would be PLN 300,000.
However, the forced share base multiplied by the fraction does not yet constitute the forced share due. This amount must now be multiplied either by one half or by two thirds.
Example: Let us assume that the result of the calculation in Step 3 in your case is PLN 300,000. You are an adult capable of work, so when calculating the forced share, you multiply this amount by one half. This means that you may claim a forced share in the amount of PLN 150,000 – at least with a high degree of probability, as Step 5 still remains.
The fact that the testator transferred their entire estate to other persons in a will does not automatically mean that you are entitled to a forced share. On the other hand, even if there is no will and you inherit part of the estate, you may still have a claim for a forced share.
What matters is whether the determined value was transferred to you from the deceased’s assets – not necessarily in the form of an inheritance. It could just as well have been a vindicatory legacy or a donation. At this stage, it is therefore necessary to compare what you actually received from the deceased’s assets with the calculated amount of the forced share. For example, if the deceased transferred a property to you many years ago but completely omitted you in the will, there is a high probability that you will no longer be able to claim payment of a forced share from the heirs.
As you can see, the entire matter is far more complex than merely determining who is entitled to a forced share and performing a few calculations. For this reason, instead of acting on your own, it is best to consult an experienced law firm specialising in succession law.
