Reserved Share (Zachowek) for a Minor Child in Poland — When Do You Need Family Court Consent?

Was your child left out of a grandparent's or other relative's will in Poland? A minor child is entitled to zachowek (the "reserved share" — a guaranteed minimum inheritance portion under Polish law) on the same basis as an adult, and actually at a higher rate. The complication arises when the case needs to be closed with a settlement, or when the child is to waive the claim. At that point, a parent simply acting as the child's legal representative isn't enough — you need the consent of the guardianship court (sąd opiekuńczy, a division of the Polish family court). Here's why, and how to sort it out while living in the UK.

A parent represents the child in a zachowek case, but a settlement or a waiver of the claim is an act that exceeds ordinary management of the child's assets — without the guardianship court's consent, it may be invalid.

Is a minor child entitled to zachowek at all?

Yes. The group of people entitled to zachowek is set out in Article 991 § 1 of the Polish Civil Code (Kodeks cywilny), and it does not depend on age — what matters is only whether that person would have inherited by statute had there been no will. A testator's child (or grandchild, if their parent has already died) falls within this group regardless of whether they are a minor or an adult.

What's more, the child's age actually increases the amount of zachowek. Under Article 991 § 1 KC:

• an adult is entitled to 1/2 of the share they would have inherited by statute;
• a minor descendant is entitled to 2/3 of that share.

The higher rate is a statutory reinforcement of protection for a child who isn't yet able to provide for themselves. We cover how the actual amount is calculated (the zachowek base, offsetting lifetime gifts) in a separate article, What is zachowek and who is entitled to it.

Who represents the child in a zachowek case?

A minor doesn't have full legal capacity, so they can't file a claim, sign a demand letter, or enter into a settlement themselves. Acting on their behalf is their statutory representative — usually a parent (Article 98 of the Polish Family and Guardianship Code, Kodeks rodzinny i opiekuńczy, "KRO").

In practice this means:

• both parents, jointly holding parental authority, generally represent the child together in such a matter;
• if one parent has died, has been deprived of parental authority, or cannot act (for example, because they are themselves the opposing party — which can happen if they are the one inheriting under the will) — the other parent takes over representation, or the court appoints a guardian ad litem (kurator) for the child (Article 99 KRO, together with the conflict-of-interest provisions);
• an adult parent living in the UK doesn't lose the right to represent their child just because they live abroad — they can act personally or through an attorney (e.g. a Polish advocate or legal counsel — adwokat/radca prawny).

Things get more complicated when the parent (or their spouse) is themselves the defendant in the zachowek case — for example, a grandmother left her estate to her son, and that son is simultaneously representing his minor child, who has a zachowek claim against that very same estate. This is a conflict of interest, and the guardianship court should appoint a kurator to represent the child's interests exclusively.

Ordinary management vs. acts exceeding ordinary management — why this distinction matters

This is where the key difference between an adult's and a minor's zachowek case begins.

Parents manage a child's assets while the child is under their parental authority, but their freedom to act is not unlimited. The Family and Guardianship Code distinguishes between:

• acts of ordinary management — a parent can carry these out alone (e.g. collecting a small sum, day-to-day administration of the child's assets);
• acts exceeding ordinary management — for these, a parent needs the guardianship court's permission (the family court).

This principle is set out in the Family and Guardianship Code, in the provisions on parents' management of a child's assets — in practice, Article 101 KRO is cited as the basis for parental management of a child's assets and the requirement of court consent for acts exceeding ordinary management. As with any specific article reference, it's worth having the Polish lawyer handling the case confirm the exact wording before you rely on it.

Filing a zachowek claim on its own is usually within a parent's powers as statutory representative. But it's a different matter with:

• entering into a settlement that ends the dispute (e.g. accepting a lower amount than the calculation would justify, agreeing to instalments, waiving interest);
• waiving the zachowek claim, in whole or in part;
• withdrawing the claim together with a waiver of the underlying right.

These are acts that dispose of the child's property — the child loses (partly or entirely) a property right they are entitled to. For that reason, they are treated as exceeding ordinary management and require the guardianship court's prior consent, regardless of whether the case is before a civil court or being settled out of court.

How to get the guardianship court's consent to a settlement or waiver

Consent is obtained in a separate proceeding before the family court (the family and juvenile division of the district court — sąd rejonowy — with jurisdiction over the child's place of residence).

Practical steps:

1. The parent's application to the guardianship court for permission to carry out an act exceeding ordinary management of the child's assets — describing what the proposed settlement or waiver involves and why it is in the child's interest.
2. Supporting documents — the draft settlement (or its key terms), documents relating to the zachowek claim (the will, the calculation of the amount, correspondence with the heir), the child's birth certificate.
3. The court's review — the court assesses whether the proposed solution serves the child's welfare (e.g. whether the proposed amount is reasonable compared with what could realistically be obtained through litigation, and whether the payment deadline is secure).
4. The court's order — consent (or refusal) is issued as a court order; only once it becomes final can the parent validly sign the settlement or submit a waiver on the child's behalf.

The court may ask for further explanations, and in contentious cases may appoint a kurator if it considers that the parent's and the child's interests may diverge.

The risk of a settlement or waiver made without consent

A settlement or waiver of a minor's zachowek claim made without the required guardianship court consent is an act affected by a lack of legal effect — it may be treated as invalid or ineffective as against the child.

Practical consequences:

• an heir who has paid a child a sum under such a settlement may not actually achieve a valid "closure" of the matter — once the child reaches adulthood (or once a properly acting representative steps in), they may argue that the zachowek claim was never actually extinguished;
• a civil court hearing the zachowek case, on discovering that the required guardianship court consent for the minor is missing, may stay the proceedings until it is obtained;
• for the parent, this means doing the work twice — going back to the guardianship-court-consent stage before the settlement (or withdrawal of the claim) can take legal effect.

That's why it's worth obtaining consent before signing a settlement, rather than trying to "patch it up" afterwards.

Running the case remotely from the UK

Living in the UK, a parent can handle the whole matter — including the application to the guardianship court — without travelling to Poland.

1. Power of attorney — the parent (as the child's statutory representative) grants power of attorney to an advocate or legal counsel (adwokat/radca prawny) in Poland, both for the zachowek case and for the application for guardianship court consent.
2. Documents — the deceased's death certificate, the will (if there is one), the child's birth certificate, documents confirming the family relationship, information about the estate.
3. Application for guardianship court consent — filed by the attorney; a hearing (if the court schedules one) can take place without the parent's physical presence, provided they are represented by an attorney.
4. Negotiations and settlement — the attorney conducts talks with the heir, but the final signing of the settlement on the child's behalf only happens once the guardianship court's consent has become final.
5. Court claim, if the settlement fails — the attorney files a zachowek claim with the district court; more on this route in the article Claiming zachowek — court claim or settlement?.

Frequently Asked Questions (FAQ)

Can a parent waive a child's zachowek claim on their own, without court consent? No, they shouldn't. Waiving a child's property claim is an act that exceeds ordinary management of their assets and requires the guardianship court's prior consent. A waiver made without that consent may be treated as invalid as against the child.

Does simply filing a zachowek claim on a child's behalf require guardianship court consent? Just bringing the claim for payment usually falls within a parent's day-to-day representation of the child. Court consent is only needed at the stage of disposing of the claim — that is, for a settlement, a waiver, or withdrawing the claim together with a waiver. If in doubt, it's worth confirming this with the lawyer handling the case.

What if the parents disagree about the settlement? If the parents can't agree on an important matter concerning the child, either of them can apply to the guardianship court for a ruling — the court decides, guided by the child's welfare.

Does the zachowek money go straight to the parent? The zachowek amount belongs to the child's assets, not the parent's. The parent manages it as part of managing the child's assets, but cannot freely dispose of it beyond ordinary management — larger transactions (e.g. paying it out, investing it) may also require guardianship court consent.

Can guardianship court consent be obtained remotely while living in the UK? Yes — the application is filed by an attorney in Poland acting under a power of attorney granted by the parent. The parent's physical presence in court usually isn't required.

Legal basis and sources

• Article 991 of the Polish Civil Code (Kodeks cywilny) — who is entitled to zachowek, and the increased 2/3 rate for minor descendants; ISAP
• Article 1007 of the Polish Civil Code — limitation period for a zachowek claim (5 years)
• The Family and Guardianship Code (Kodeks rodzinny i opiekuńczy) — provisions on parental authority, representation of a child, and management of a child's assets, including the requirement of guardianship court consent for acts exceeding ordinary management (exact article number to be confirmed with a Polish lawyer before you rely on it); ISAP