Legal portion is a form of protection of close relatives of a testator, who would inherit after the deceased, but for some reason were ommitted in the last will or connot claim theit legal portion because of the fact that testator made donations that decreased the amount of the inheritance assets.
The circle of persons entitled to claim their portion in inheritance are descendants, spouse and parents of the deceased , who would inherit after the deceased. If the claimant is permanently unable to work or if he or she is a minor – be they can claim two-thirds of the share of inheritance , which they would inherit in statutory inheritance , while in other cases – half the value of the share.
If the entitled person did not receive the due portion either in the form of donation made by the testator or in the form of appointment to inheritance, or in the form of bequest he or she may claim from the heir to pay a certain amount of money that covers the portion or to complete it. The claim is heard in trail proceeding.
Calculation of the legal portion
The calculation of the legal portion requires establishment of so called the substrate of a legal portion. This substrate is later multiplied by the appropriate fraction, depending on who will be the beneficiary of the legal portion. The calculation of the share in succession, which would be inherited in statutory inheritance, we do take into account the unworthy heirs as well as heirs that waived the succession, bit we do not take into account the heirs that rejected their inheritance or were disinherited. In calculation of a legal portion we do not take into consideration ordinary bequests and testator’s commands, but we take donations and vindicatory bequests made by the testator. These two parts would add to the substrate of the portion.
It should be noted that we do not add the donations that are custom in the said relationships as well as those made more than 10 years before the opening of the inheritance for persons that are not heirs or that are not entitled to a legal portion. At the calculation of the value to which the descendant is entitled, we do not add the donations that the testator had made prior to having children, and to which the spouse is entitled we do not add the donations that the testator had made prior to getting married with this person. It does not comply with the situation when the donation had been made less than 300 days prior to the birth of a descendant. The value of the donation is calculated according the its state in the time of making it, and according to prices from the date of ruling.
If the entitled inherits after the testator, his liability for ordinary bequests and testator’s commands is limited to the amount exceeding his share in the inheritance assets, which is the basis to calculate his legal portion.
If the heir obliged to pay the legal portion is also entitle to claim his own portion his liability is limited only to the amount that exceeds his legal portion.
Expiry of the claim
The entitled person may claim the legal portion within 5 years since the opening of the last will.
Polish version of this article can be read here.