The right to a reserved share when a property is given as a gift

Sometimes an heir receives a property as a gift from the deceased during the deceased's lifetime. Do they still keep the right to a reserved share (zachowek)? We explain more of the intricacies of inheritance law!

What is a reserved share?

Let us start by explaining the institution of the reserved share ("zachowek"). It was created to prevent unfair provisions in wills. An example is a situation in which a deceased woman leaves her entire estate to one child, passing over her husband and her other children. Even though the provisions of the will may be clear and unambiguous, the right to a reserved share still belongs to the so-called descendants and to the other closest relatives: the testator's parents and spouse.

A reserved share is due first of all to children (it makes no difference whether they were born within marriage or outside it) and to the spouse. Only when the deceased leaves no children or grandchildren can a reserved share also be paid to the parents.

No right to a reserved share

Of course, it may happen that one (or several) of the heirs is deprived of the right to a reserved share. This is the case, for example, when the spouses were legally separated at the time one of them died. The right to a reserved share can also be taken away by a court ruling at the request of the other heirs. This can happen only if the deceased had filed a justified petition for divorce or separation. The second case in which an heir can be deprived of the right to a reserved share is disinheritance (confirmed by a notary).

The right to a reserved share when a property is gifted

What happens if one of the heirs received a property or another item of high value as a gift? In that case the amount of the reserved share due is recalculated, deducting the value of the property received. However, this mechanism works only when one of the heirs obtained a financial benefit at the expense of the others.

In theory, it is possible to protect that heir by exempting the gift from being counted towards their share of the inheritance. This means that the gifted property will not be taken into account when the estate is divided by inheritance. Thanks to this, the heir who received the property will not have to account for it. The gift is then treated as if it had never been made.

We also explain other intricacies of inheritance law in other articles on our blog. Read about the characteristics of a gift received from parents, and find out when you can sell a flat received through inheritance!

If you have more questions, contact an agent at REMAX Gold! Write to us!