Reserved Share (Zachowek): Who Do You Claim It From If There's a Will?

This guide is general legal information, not legal advice. How the rules apply depends on your individual circumstances, so the matter should be assessed by a qualified Polish lawyer. Twoja Sprawa helps you organise the documents for that assessment.

You know you're entitled to a reserved share (zachowek — a fixed minimum share of the estate that certain close relatives are entitled to even if left out of the will) — but who do you actually claim it from? A will names certain heirs, and there may also be specific bequests or lifetime gifts to consider. Below we explain who is liable for the reserved share, in what order, and what to do if the named heir has no money to pay.

Order of liability: First, the will-appointed heir; if they can't cover it, the legatee under a zapis windykacyjny (a specific-item bequest); as a last resort, the gift recipient.

The primary debtor — the will-appointed heir

The main debtor towards the person entitled to a reserved share is the will-appointed heir — the person the deceased named in the will. Article 1000 § 1 of the Polish Civil Code (Kodeks cywilny, KC) provides that heirs must pay the reserved share in proportion to their inheritance shares.

How liability is calculated

If the will leaves: - Child A — 2/3 of the estate - Child B — 1/3 of the estate - Child C (entitled to a reserved share) — nothing

Then C claims against A and B, and each of them is liable for a portion of the reserved share proportional to their own share:

• A pays: 2/3 of the reserved share
• B pays: 1/3 of the reserved share

That's the fair outcome — those who received more, pay more.

Joint and several liability vs. proportional liability

In court practice:

• Joint and several liability — you can sue any one heir for the full amount; that heir must pay the whole sum and then recover contributions from the others (this depends on the specific facts and any arrangement between the heirs)
• Proportional liability — you settle with each heir separately for their own share

Courts most often hold heirs jointly and severally liable towards the claimant, for the claimant's convenience, leaving the heirs to sort out the internal split among themselves afterwards.

The specific-item legatee — when the estate isn't enough

A zapisobierca windykacyjny (legatee under a zapis windykacyjny) is someone the deceased left a specific item to in the will (for example: "I leave my watch to Marian"). This is a distinct Polish-law device — a will can transfer a named asset directly to a named person, rather than just a share of the estate.

Article 1000 § 2 KC provides that this type of legatee is also liable for the reserved share — but only where the will-appointed heirs cannot cover it in full.

The process for claiming from a legatee

1. You sue the heirs first — they are liable in the first instance
2. If the court finds the heirs don't have sufficient means, you can then claim against the legatee
3. The legatee's liability is capped at the value of the item they received — no more

Example: A will leaves the entire estate (300 units) to Child A, but also bequeaths a car (100 units) to a friend as a specific-item legacy. Child B, entitled to a reserved share of 150 units, sues A. If A has other assets, A pays. If A has nothing, B can then claim against the friend, who must return the car or its value (up to 100 units).

The gift recipient — the last line of liability

Article 1000 § 3 KC provides for liability of a gift recipient (obdarowany) towards the claimant — but only as a last resort.

A gift recipient (someone who received a lifetime gift from the deceased) is liable for the reserved share if:

1. The heirs cannot cover the reserved share, and
2. The legatees cannot cover it either, then
3. The claimant may sue the gift recipient

Limits on the gift recipient's liability

A gift recipient's liability is capped at the value of the gift they received — no more. If they received a gift worth 50 units, and the reserved share owed is 200 units, they are only liable for 50 units.

Right of recourse

A gift recipient who has paid part of the reserved share can seek reimbursement from the heirs — that is a separate matter between them.

The practical order of claims — a step-by-step approach

If the person entitled to a reserved share needs to pursue several people, the sensible order is:

1. Claim against the will-appointed heir first (the primary debtor) — set out the amount of the reserved share and demand payment
2. If the heir has no money (and the court confirms this), claim against the legatee — capped at the value of the specific bequest
3. If the legatee cannot cover it either, claim against the gift recipient — capped at the value of the gift

In practice, a claim against the heir is usually enough — if there's anything left to divide, they'll pay up.

What to do if the estate has already been spent

Sometimes the will-appointed heir spends the estate quickly — buys a car, renovates a house, goes travelling. That leaves a real problem: there's nothing left to pay the reserved share from.

Your options:

1. Ask for payment by instalments — the court can order payment spread over time (Article 1000 § 1 KC allows this), with interest
2. Turn to the legatee and the gift recipient — if they have assets
3. Apply for enforcement — if you have a judgment and the debtor doesn't pay, you can start enforcement proceedings (seizure of a bank account, property, etc.) — though this takes time and money

Sometimes a case ends with only a partial payment, or repayment spread over a very long period.

Drafting the claim — what to include

When you prepare a claim against the will-appointed heir, it should cover:

• Claimant and defendant — full names and addresses of the parties
• The facts — the will, being left out of it, and the basis for the reserved share entitlement
• Calculation of the reserved share — the notional estate value (substrat zachowku), the fractions applied, and the resulting sum
• The claim itself — a precise sum of money (or a request for the court to "determine the amount", if the value is disputed)
• Legal basis — Articles 991, 993, 1000 KC, and others as relevant
• Evidence — the will, civil status records, a valuation of the estate, gift documentation
• Signature — yours or your representative's

Article 1000 KC also allows you to claim interest from the date set in a prior written demand for payment (if you sent one).

Frequently asked questions

Can I sue all the heirs at the same time? Yes, usually in a single claim. Each heir is liable for their own share; the court apportions liability between them.

If one heir pays more than their share, can they claim it back from the others? Yes — heirs have a right of recourse against each other. An heir who paid more than their proportional share can sue the others for reimbursement. That's a separate settlement between the heirs (outside the main reserved-share proceedings).

Can I claim the reserved share "in kind" instead of in money? No — a reserved share is always a monetary claim. You can claim money, but not a specific flat or car.

What if the heir doesn't have significant assets, but has a steady income? You can ask for payment by instalments — the court may order an annual repayment schedule. The claim should then include a request for instalment payment with interest.

Is the specific-item legatee jointly and severally liable with the heir? No — they are liable second in line, and only up to the value of the specific bequest. It's an entirely different legal relationship.

Can a gift recipient defend themselves by saying the gift was "from the heart"? No — the nature of the gift (whether spontaneous or planned) doesn't change the fact that it counts towards the notional estate for calculating the reserved share, and that the recipient can ultimately be held liable as a last resort.

Legal basis

• Article 1000 KC — liability of heirs, legatees and gift recipients for the reserved share
• Articles 991–1011 KC — general provisions on the reserved share
• ISAP: Kodeks cywilny (Polish Civil Code)