Disinheritance and exclusion from inheritance are legal institutions in inheritance law that allow for the deprivation of inheritance rights, even though the person to whom they apply formally belongs to the circle of heirs. Other cases are discussed in the article: Renunciation of Inheritance and Other Cases When a Potential Heir Does Not Inherit.
I encourage you to explore my other posts on inheritance law:
- Principles of Inheritance and Declaration of Acquisition of Inheritance,
- Division of the Estate, and
- Renunciation of Inheritance and Other Cases When a Potential Heir Does Not Inherit.
In this article, you will learn:
- What disinheritance is
- What the reserved portion (zachowek) is
- When disinheritance is possible
- What constitutes “persistent behavior contrary to the principles of social coexistence”
- What intentional crimes against life, health, or freedom and gross insults to honor entail
- What “failure to fulfill family obligations” means
- Who can be disinherited
- How disinheritance can be carried out
- What the legal consequences of disinheritance are
- When disinheritance is not possible
- What exclusion from inheritance is
- Exclusion from inheritance through a will
- Exclusion from inheritance through court proceedings
- Who can request the exclusion of a spouse from inheritance
- The deadline for filing a lawsuit to exclude a spouse from inheritance
- The legal consequences of a judgment excluding a spouse from inheritance
- At the end of the article you can find Frequently Asked Questions
What Is Disinheritance?
Disinheritance means depriving a person entitled to a reserved portion of their right to receive it, as declared by the testator.
It is often confused with the so-called negative will, where the testator deprives an heir of their share in the estate but does not completely exclude them by taking away their right to the reserved portion, which they can still claim. Disinheritance specifically fulfills this function.
What Is the Reserved Portion?
The reserved portion (zachowek) is a legal institution designed to protect the closest relatives of the testator.
It ensures that descendants, the spouse, and parents of the testator, who would be entitled to inherit under statutory law, receive half of the value of their statutory inheritance share. This increases to two-thirds if the entitled person is permanently unable to work or if the entitled descendant is a minor.
You should know that descendants include all direct offspring of the same person: children, grandchildren, great-grandchildren, etc.
If the entitled person does not receive their reserved portion through a gift, inheritance appointment, or a legacy, they have a claim for payment against the heir to cover the shortfall.
This claim is pursued by filing a lawsuit with the court in the last habitual residence of the deceased. If this cannot be determined within Poland, the lawsuit is filed in the jurisdiction where the estate or part of it is located.
When Is Disinheritance Possible?
Disinheritance is only possible in cases specified in the Civil Code. It can be applied to a person entitled to the reserved portion if they:
- Persistently act contrary to the principles of social coexistence against the will of the testator,
- Commit an intentional crime against the life, health, freedom, or dignity of the testator or their close relatives,
- Persistently fail to fulfill family obligations toward the testator.
What Is “Persistent Behavior Contrary to the Principles of Social Coexistence”?
This involves behavior by the heir that violates generally accepted norms of proper conduct and deserves societal condemnation. It must be of a negative nature, grossly breaching moral principles. Examples include a dissolute lifestyle characterized by criminal activities, alcoholism, drug addiction, gambling, or neglect of family welfare.
However, such behavior does not constitute grounds for disinheritance if the testator accepted it, for instance, by knowingly benefiting from the proceeds of crime, such as money or property.The behavior must also be persistent.
What Does “Persistence” Mean?
Persistence refers to prolonged misconduct by the heir or repeated improper behaviors, not necessarily of the same type.
What Are Intentional Crimes Against Life, Health, or Freedom and Gross Insults to Honor?
“Intentionality” in crimes involves the commission of a felony or misdemeanor in two forms:
- Direct intent, where the perpetrator deliberately seeks to commit the crime,
- Eventual intent, where the perpetrator foresees the possibility of committing the prohibited act and accepts it.
Common crimes against life, health, or freedom include:
- Battery,
- Causing grievous bodily harm,
- Inflicting bodily injury,
- Failing to render aid in danger,
A gross insult to honor occurs when the heir insults or slanders the testator.
Failure to Fulfill Family Obligations
Under the provisions of the Polish Family and Guardianship Code, every family member is subject to a series of duties that must be fulfilled to ensure the family’s proper development. These duties include maintaining family bonds, mutual support, and providing care and assistance, for example, due to age, health, or life circumstances.
For an heir’s behavior in failing to fulfill these obligations toward the deceased to justify disinheritance, it must be clearly reprehensible, meaning it results from their evident fault and stems from circumstances solely attributable to that person. Examples of such behavior include:
- Frequently initiating conflicts with the deceased,
- Making unwarranted and hurtful accusations against the deceased,
- Forcing the deceased out of their home,
- Failing to participate in the deceased’s life, such as visiting them or showing interest in their affairs.
It should be emphasized that failing to visit the deceased, if justified by grievances against them—even if it lasted for years—cannot be considered persistent failure to fulfill family obligations. Similarly, if the deceased neglected family contacts, they cannot use this as grounds to disinherit their closest relatives.
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Who Can Be Disinherited?
Disinheritance may apply to:
- Descendants, including the testator’s children, grandchildren, great-grandchildren, etc.,
- Spouses, and
- Parents.
It cannot be applied to any other individuals.
How Can Disinheritance Be Carried Out?
Disinheritance can only be effected through a will. It occurs when the testator includes an appropriate declaration of intent in the will. It is important that the reason for disinheritance is explicitly stated, described, and justified in the will.
Disinheritance takes effect upon the opening of the estate, i.e., the death of the testator. Until then, it can be revoked if the relationship between the testator and the heir improves.
Disinheritance can be total or partial. Partial disinheritance results in depriving the heir of only part of the reserved portion. However, it is only valid if the reason for its application exists at the time the will is made. The absence of such grounds renders the disinheritance ineffective, and it cannot be rectified by the subsequent emergence of a reason. For instance, disinheritance cannot be conditional on future events, such as the heir developing a gambling addiction or neglecting family matters. However, it is permissible to specify that disinheritance will cease to have effect if, for example, an alcoholic son undergoes appropriate rehabilitation.
Disinheritance is not final—the testator can destroy, change, or revoke the existing will at any time before their death.
What Are the Legal Consequences of Disinheritance?
The legal effect of disinheritance is that the heir is deprived of both their direct share of the estate and the right to the reserved portion.However, the descendants of the disinherited person retain their right to the reserved portion, even if the disinherited individual outlives the testator.
When Is Disinheritance Not Possible?
According to current regulations, the testator cannot disinherit someone entitled to the reserved portion if they forgave their behavior before drafting the will.
If the testator lacked legal capacity at the time of forgiveness, it is only valid if done with sufficient discernment.
Interestingly, the law does not specify the form in which forgiveness must be expressed. It can be verbal, although written form is preferable for evidentiary purposes.
What Is Exclusion from Inheritance?
An heir can be excluded from inheritance in two ways:
- Through a will, or
- Through court proceedings.
Exclusion from Inheritance in a Will
Exclusion from inheritance in a will occurs when the testator omits certain individuals from the will, thereby depriving them of a share in the estate. This is known as a “negative will,” as mentioned earlier in this article. Importantly, the testator does not need to provide reasons for this decision. However, such exclusion does not remove the right to the reserved portion. This means that an excluded heir can still claim the reserved portion from the estate.
Exclusion from Inheritance Through Court Proceedings
Exclusion from inheritance through court proceedings is a specific tool provided for in Article 940 of the Civil Code. It applies exclusively to the deceased’s spouse and only under specific circumstances.
According to this legal provision, a spouse is excluded from inheritance if:
- The testator filed for divorce or separation based on the spouse’s sole fault, and
- The claim was justified.
Both conditions must be met simultaneously at the time of the opening of the inheritance.
Exclusion of a spouse from inheritance does not occur automatically; it requires a court ruling. This can only be achieved through a separate, specifically initiated proceeding by filing a lawsuit. This is because the death of the testator, as the plaintiff in divorce or separation proceedings, results in the automatic dismissal of the case by the court.
It should be noted that if the testator filed a petition or response to a petition requesting a ruling on the spouse’s fault but later changed their stance and requested a no-fault divorce ruling, there will be no grounds for excluding the other spouse from inheritance.A court ruling excluding a spouse does not happen automatically merely because the testator filed for divorce or separation.
The court must first conduct thorough evidence proceedings to establish beyond a reasonable doubt that:
- There was a permanent breakdown of marital life (for separation) or a complete and irretrievable breakdown (for divorce),
- There are no negative grounds for granting a divorce,
- The surviving spouse was solely at fault for the marital breakdown.
Only if all these conditions are met can the court issue a judgment excluding the deceased’s spouse from inheritance.
Who Can Request the Exclusion of a Spouse from Inheritance?
Any other statutory heir entitled to inherit alongside the spouse may request their exclusion. The defendant is the surviving spouse (heir) or, if they are deceased, their heirs.
What Is the Deadline for Filing a Lawsuit to Exclude a Spouse from Inheritance?
The deadline to file a lawsuit for excluding a spouse from inheritance is six months from the date the heir learned of the opening of the estate, but no later than one year from the opening of the estate (the testator’s death).
What Are the Legal Consequences of a Judgment Excluding a Spouse from Inheritance?
Regardless of whether the lawsuit is filed by one heir or several, a judgment excluding the spouse from inheritance affects all statutory heirs.
The legal consequence of such a judgment is that the spouse is excluded from inheritance as if they predeceased the testator. Consequently, they are also deprived of the right to the reserved portion.
