Reserved Share and Lifetime Gifts: How Polish Inheritance Law Treats Prior Gifts

Legal notice: This article is general information about Polish inheritance law, not legal advice. It does not replace advice from a qualified Polish lawyer on your specific circumstances.

A person leaving an estate (the spadkodawca, roughly "the deceased" or "testator") might try to sidestep the reserved-share rules by giving away assets as lifetime gifts before they die. Polish law does not let this work — lifetime gifts are added back into the estate for the purpose of calculating the reserved share, known as zachowek (Article 993 of the Polish Civil Code, Kodeks cywilny, "KC"). Below we explain which gifts get added back, how the mechanism works, and what it means for you.

The rule: Lifetime gifts are added back to the value of the estate to work out the reserved share — regardless of when the deceased made them.

What "adding back" gifts means (Articles 993–1000 KC)

Adding gifts back (zaliczenie darowizn) is a protective mechanism for anyone entitled to a reserved share. If the deceased gave a gift to one heir (say, a son), that gift does not automatically reduce the reserved share owed to another heir (say, a second son). Instead, the value of the gift is folded back into the notional pool — the base figure used to calculate the reserved share.

In practice: when working out the reserved share, you first add all the qualifying gifts back into the estate's value, and only then divide the resulting total — this is meant to ensure fair treatment of everyone entitled to a reserved share.

Which gifts get added back — the time rules

Article 994 § 1 KC sets out precisely which gifts go into the notional pool.

Gifts to descendants (children, grandchildren)

• All gifts count, with no time limit — it makes no difference whether the deceased gave the gift to their child 1 year or 30 years before death ✅
• There is no time-bar: every gift is counted

Gifts to a spouse

• All gifts count, with no time limit — the same rule as for descendants ✅
• This also applies to gifts made to a former spouse, provided the gift was still legally effective as between the deceased and that person at the relevant time ⚠️

Gifts to parents and third parties

• Only gifts made in the last 10 years before the death count (Article 994 § 1 KC) ⚠️
• A gift made 11 years before death — does not count
• A gift made 5 years before death — does count

Exceptions — gifts that are not added back

Not every gift goes into the notional pool. Article 994 KC excludes:

1. Ordinary gifts of small value — small Christmas or birthday presents, flowers, minor items (a court decides case by case whether a gift is genuinely "ordinary"; expensive jewellery, for example, would usually count as a proper gift, not a trifle) ⚠️
2. Gifts the deceased expressly excluded — if the will or the deed of gift contains wording such as "this is not to be added back to your share", that particular gift will not be added back ✅
3. Gifts between engaged couples (Article 888 KC) — engagement gifts between fiancés may have a special status, though the case law here is less settled ⚠️

How the "add-back" mechanism works — a worked example

Scenario: The deceased had two adult children, A and B. - A received a house as a lifetime gift, worth 200 units. - The remaining estate is worth 400 units. - The will leaves the entire estate to A.

The calculation: 1. Notional pool = estate (400) + A's gift (200) = 600 units. 2. Statutory shares: A and B each get 1/2 = 300 units each. 3. B's reserved share = 1/2 × 300 = 150 units.

Crediting A's gift against A's entitlement: - A already received a gift worth 200, and is also due to receive the entire 400 under the will. - The gift is credited against what A is owed (Article 1000 KC). - A ends up receiving 400 − 200 (credited gift) = 200 units net. - B receives their reserved share of 150 units. - Total: 200 + 200 + 150 = 550 — less than the notional pool of 600, because the difference is what funds the reserved-share payment.

(This is a simplified illustration; real cases are more complex once debts and estate costs are factored in.)

Using gifts to disinherit in all but name — the protection this gives you

⚠️ IMPORTANT: If the deceased gave almost their entire estate to one heir as lifetime gifts, the other heir does not lose their right to a reserved share. The reserved share applies regardless of lifetime gifts — which is exactly why gifts are added back: to protect the person entitled to it.

In other words: if someone genuinely wants to disinherit a child, this has to be done properly in a will, on one of the statutory grounds (Article 1008 KC) — it cannot be achieved simply by giving assets away during life.

Gifts to third parties — their liability

Article 1000 KC also creates liability for third parties who received gifts (for example, if the deceased gave a sum of money to a friend, not a family member).

• A third-party recipient can be required to return the gift (in whole or in part) to the person entitled to the reserved share, if the heirs themselves cannot cover the amount owed
• This is a fallback route, used when the heirs have too little in their own hands to pay the reserved share

In practice: this happens rarely — it is usually simpler to bring a claim against the heir named in the will.

Gifts made outside Poland — cross-border issues ⚠️

If the deceased made a gift of property located outside Poland, whether that gift is added back to the notional pool depends on:

• Private international law rules — which country's law applies (Polish inheritance law, or the law of the country where the property is situated) ⚠️
• International agreements — including EU rules, which now apply only in limited ways to the UK following Brexit
• Court practice — Polish courts may require a formal valuation of foreign property, which can complicate matters

We recommend taking advice from a lawyer with cross-border experience in this area.

Opting out — excluding a gift from being added back

The deceased can expressly state in their will that a particular gift is not to be added back. Article 994 § 2 KC allows this. In practice this might look like:

• A will that reads: "The gift of PLN 100,000 made to my son Janusz in 2020 is excluded from being added back."
• In that case, that particular gift is not folded into the notional pool.
• The reserved share is then calculated on a lower base value — which can work against the other child.

Clauses like this are used occasionally, but they show that testators are often trying to strike a fair balance.

Frequently asked questions (FAQ)

Is a gift made 20 years ago added back? It depends on who received it. If it went to a descendant (a child) — yes, regardless of how long ago. If it went to a parent or a third party — no, because more than 10 years have passed.

What if a parent gave a flat to my sister as a gift, and I was left out of the will? The flat given to your sister is added back into the notional pool used to calculate your reserved share. This reduces the base figure your entitlement is calculated from, but it does not take away your right to a reserved share altogether.

Can I claim the reserved share from the person who received the gift, if the heir has no money? Yes — if the heir named in the will cannot cover the amount owed, you can pursue the person who received the gift. Article 1000 KC gives you the right to claim the return of the gift, or part of it, to satisfy your reserved-share entitlement.

Do ordinary small gifts count at all? In theory, no, provided they are genuinely ordinary (modest in value, nothing that would raise an eyebrow). But a court assesses this case by case — it's better to have documentation than to rely on the court's goodwill.

What if the deceased expressly excluded a gift from being added back? Then it is not added back — this falls under Article 994 § 2 KC. This is uncommon, but where it applies it reduces the notional pool used for the reserved share.

Legal basis

• Articles 991–1000 KC — reserved share and lifetime gifts
• Articles 993–994 KC — which gifts are added back
• ISAP: Polish Civil Code (in Polish)