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Attorney Milena Nowicka
What is a reserved portion?
Who is entitled to a reserved portion? When do you receive a reserved portion from parents, and when from grandparents?
What is the amount of the reserved portion?
When must the reserved portion be paid?
Reserved portion and a will
Reserved portion and intestate succession
Reserved portion and a gift
How can you avoid paying the reserved portion?
Reserved portion – summary
FAQ
The testator can, in principle, leave their property to anyone they choose. However, there are certain limitations in this respect. The law provides additional protection for the closest relatives—the right to a reserved portion. This topic consistently raises many emotions, as well as many questions and doubts. What exactly is this right? How do you calculate the amount of the reserved portion? And can its payment be avoided? You will find all the answers in this article.
A reserved portion is an entitlement intended to protect the testator’s closest relatives. It guarantees that even if they are omitted from a will, or even if the testator disposes of most of their property through gifts, they may still receive a certain statutory minimum.
Thus, if you received no property from the deceased or received less than the statutory minimum, you may claim the missing amount. As a rule, you pursue your claim against an heir (or, in some cases, against a donee) for payment of the sum needed to cover or supplement the reserved portion. The matter can be settled by agreement or brought before a court.
However, in order to claim a reserved portion at all, you must meet two conditions:
1. Be a close relative of the testator, meaning you belong to one of the following groups:
2. Be omitted from the will or receive less than the statutory minimum.
As mentioned above, the right to a reserved portion belongs to the testator’s closest relatives (descendants, spouse, parents), provided that they would be entitled to inherit under statutory (intestate) rules.
To determine whether you are entitled to any payment, you must check who would inherit if the deceased had not made a will. If the deceased had descendants (children, grandchildren), they inherit together with the spouse under the Civil Code. Grandchildren are entitled to a reserved portion only if their parents are deceased or, for various reasons, excluded from inheritance.
As a parent of the deceased, you inherit by statute only if the deceased had no descendants, or if those descendants cannot or do not wish to inherit.
This means that as the spouse or child of the testator, you practically always have a claim to a reserved portion. As a grandchild or parent of the deceased, however, only in certain cases.
The exact amount of a reserved portion depends on your degree of kinship with the testator, the number of persons entitled to inherit, and your personal situation (age, ability to work).
The process of determining the amount of the reserved portion consists of three steps:
To calculate the reserved portion, you must first determine the share you would receive under intestate succession (i.e., if the deceased left no will). This share is expressed as a fraction—1/2, 1/3, 1/6, etc.
If you are:
Example:
The testator had a wife and two children, so under intestate succession each would receive a 1/3 share. If, however, the testator had four children, the wife would receive 1/4 of the estate, and the remaining 3/4 would be divided equally among the children.
As a rule, the reserved portion amounts to half of the value of the statutory share that would be due to you under intestate succession. This means you multiply your statutory share by 1/2.
An exception applies if you are a minor heir or a person permanently incapable of work—in that case, you are entitled to a higher reserved portion equal to 2/3 of the statutory share.
Example:
The testator had a wife and one minor child. Under intestate succession, each would inherit half of the estate. The wife’s reserved portion is therefore 1/4 (a statutory share of 1/2 × 1/2), while the child’s reserved portion is 1/3 (1/2 × 2/3, because the child is a minor).
The next step is to determine the monetary value of your reserved portion. To do so, you multiply the calculated fraction (your statutory share multiplied by 1/2 or 2/3) by the so-called “substrate” of the reserved portion—the value of the assets taken into account when calculating it. This includes not only the net value of the estate (assets minus liabilities), but also the value of most gifts and the value of vindicatory legacies.
Example:
Assume your reserved portion amounts to 1/4, and the testator left an estate worth PLN 1,000,000. There were no gifts and no vindicatory legacies. Your reserved portion therefore amounts to PLN 250,000 (1,000,000 × 1/4).
The mere fact that someone is entitled to a reserved portion does not automatically mean that they will receive it. Much depends on whether they received any property through inheritance or gifts, and whether there are grounds to exclude them from inheritance.
The most obvious case requiring payment of a reserved portion is when the testator left a will and completely omitted an entitled person—for example, leaving the entire estate to a son while entirely omitting the spouse.
Another situation is when the testator does not omit the spouse in the will but bequeaths to them less than their reserved portion—for instance, when the value of the reserved portion is PLN 250,000, but under the will the spouse received property worth only PLN 100,000. In such a case, the spouse may demand that the remaining heirs (in this case, the son) supplement the reserved portion by paying the remaining PLN 150,000.
Even if the testator did not leave a will, a reserved portion may still be due. This is because, when calculating the reserved portion, the value of most gifts made during the testator’s lifetime and any vindicatory legacies is also taken into account, not just the estate itself.
This means that if the testator made substantial gifts, payment of a reserved portion may still be required—even though there is no will and inheritance is governed by statutory rules.
Example:
The testator died without a will, leaving an estate worth PLN 200,000. One year before death, they made a gift to their brother worth PLN 600,000. Under statutory rules, the adult daughter and the wife inherit PLN 100,000 each. However, this amount is lower than their reserved portion. Each should receive half of their statutory share (1/2 × 1/2), multiplied by the value of the estate and the gifts (200,000 + 600,000). This means the reserved portion equals PLN 200,000 for each (800,000 × 1/4). Both the wife and the daughter may therefore demand supplementation of the reserved portion from the testator’s brother—PLN 100,000 each.
A gift also affects the reserved portion in another way—it may be credited against the inheritance share. In practice, this means that if the person entitled to a reserved portion previously received a gift from the deceased, that gift must be credited toward their reserved portion. As a result, it may turn out that even if they received little or nothing from the estate, they are not entitled to demand payment of a reserved portion.
Example:
The testator died, having appointed his wife as the sole heir of an estate worth PLN 200,000 and entirely omitting his only daughter. The daughter was an adult, so her reserved portion should equal 1/4 of the substrate. Several years earlier, however, the testator made a gift to the daughter worth PLN 80,000. The daughter’s reserved portion equals 1/4 × PLN 280,000 = PLN 70,000. In this situation, it is deemed that the daughter has already received her reserved portion through the gift—and even more than the statutory amount. She therefore cannot claim any payment of a reserved portion.
Does the mere fact that someone is entitled to a reserved portion automatically mean that you must pay the claimed amount? Not necessarily. There are seven situations in which this can be avoided.
The limitation period for claims is currently 5 years and is calculated from the date the will is announced. If the testator left no will, the period usually runs from the date of death. After the limitation period expires, you can effectively avoid payment by raising the defence of limitation.
It may also happen that the person entitled to a reserved portion has, for various reasons, “not deserved” the inheritance or even the reserved portion. Only a court can decide this. There are only three grounds for declaring someone unworthy to inherit:
If the person claiming the reserved portion committed any of the above acts, you may seek a declaration of unworthiness, thereby depriving them of the right to a reserved portion.
The testator may also decide that an entitled person “does not deserve” the reserved portion and disinherit them. This is permissible only for three reasons, namely when the entitled person:
A court will assess whether disinheritance on these grounds is effective. Disinheritance can be effected only in a will and must include both the legal basis and a justification.
If someone demands payment of a reserved portion from you, check whether they received gifts that can be credited against the inheritance share. Such gifts may exhaust their entitlement.
Rejection of the inheritance also deprives a person of the right to a reserved portion. However, if a child or grandchild rejects the inheritance, their rights (including the reserved portion) generally pass to further descendants.
A waiver of inheritance is a special agreement concluded between an heir and the testator. By waiving inheritance, one also waives the right to a reserved portion, as the heir is treated as if they had not survived the opening of the succession.
If none of the above applies, you may invoke Article 5 of the Civil Code, arguing that granting the reserved portion would be contrary to principles of social coexistence. Although difficult, it is not impossible. Typically, invoking this provision may lead to a reduction of the reserved portion rather than complete avoidance of payment.
The right to a reserved portion arises whenever a descendant, spouse, or parent was not appointed to inherit or received less than the statutory minimum. It does not always mean that such a person will receive money—there are several situations in which they may not be entitled to it. Inheritance law is complex, so if you have any doubts, it is best to consult a lawyer. Act promptly—the limitation period is relatively short.
Reserved portion – what is it?
The reserved portion is a statutory minimum that the testator’s closest relatives (descendants, spouse, parents) should receive after the testator’s death. It may take the form of inheritance, vindicatory legacies, or gifts. The amount is calculated by multiplying 1/2 or 2/3 by the fraction corresponding to the statutory share.
Who is entitled to a reserved portion from a gift?
The reserved portion from a gift is due to those closest relatives (descendants, spouse, parents) who, due to the gift, received less than the statutory minimum. If the gift ensures they have not received less than the reserved portion, they cannot claim payment from the donee.
How to make a will excluding the right to a reserved portion?
To deprive a close relative of the right to a reserved portion, the testator must effectively disinherit them in a will. This is possible only for the three reasons listed in Article 1008 of the Civil Code, which must be clearly indicated and justified.
How not to pay a reserved portion after receiving a gift?
You do not have to pay a reserved portion from a gift if you are not among statutory heirs and at least 10 years have passed since receiving the gift. It is also possible that the entitled person files the claim too late—more than 5 years after the succession opened—allowing you to invoke limitation and avoid payment.
