Disinheritance – an institution of inheritance law that allows the testator, subject to exhaustively enumerated conditions, to deprive certain persons of the right to a reserved share, is of considerable importance for another institution of this branch of law, i.e. a reserved share. In order to be effective, the disinheritance must be entered in a valid will. It is impossible to disinherit, provided or subject to a time limit.
Article 1008 of the Civil Code expressly specifies the cases where the entitled (descendant, spouse, parent) may be deprived of the right to a reserved share. They are in turn:
- persistent proceedings in a manner contrary to the principles of social coexistence against the will of the testator;
- committing an intentional crime against the testator or one of his closest persons against life, health or freedom, or a blatant offense against honor;
- persistent failure to fulfill family obligations towards the testator.
The basis for calculating the amount of the reserved share is the inheritance share that would have fallen to the holder of the statutory inheritance. The share, expressed as a fraction, should be specified separately for each entitled person, subject to Art. 992 of the Civil Code, which orders to omit those who renounced the inheritance or were disinherited. Therefore, when disinheritance occurs, the inheritance shares of the uninherited heirs increase, thus affecting the amount of the reserved share. The value of the reserved share is 1/2 of the value of the inheritance share, unless the heir is underage or completely incapable of work – then this value will also be 2/3 of the value of the inheritance share.
For the sake of illustration, it is worth presenting it with an example. Suppose the deceased testator had three childless sons who were the only heirs. If he had not left a will, each of them, ex lege, would inherit 1/3 of the estate. Assuming that the value of the inherited property was PLN 900,000, each of the sons would inherit PLN 300,000.
The situation would be different if the deceased decided to make a will, mentioning only the disinheritance of one of his sons, for example, pointing to alcoholism, which he constantly condemned during his lifetime. If this happened, we would treat the disinherited son as if he did not survive the opening of the inheritance, and since he had no descendants to replace him (according to the principle of inheritance), his inheritance share would increase the inheritance shares of the two other sons. In this case, assuming as above (three childless sons and no other statutory or testamentary heirs), two uninherited sons would inherit 450,000 under the law. PLN – which would consist of 1/3 of the inheritance in total and 1/2 of the inheritance that would have fallen to the third of the sons had he not been disinherited.
By extending the case presented in this way, one can also attempt to enumerate a possible reserved portion. If, for example, the testator, in the described will, not only disinherited one of the sons, but additionally bequeathed all the property to the neighbor who has been dealing with him for years, the two uninherited sons would have a claim against her for a reserved share. It would be entitled to 1/2 of the inheritance share, i.e. in the described situation it would be PLN 225 thousand. zloty.