The essence of the institution of the legitime (zachowek) is the liability of a testamentary heir towards certain persons who would otherwise have inherited by operation of law. Crucially, however, donees may also bear subsidiary liability for the legitime.
The Legitime (Zachowek)
The provisions of the Civil Code (Kodeks cywilny) are clear — pursuant to Art. 991 and the articles that follow, descendants (children, grandchildren, etc.), the spouse, and the parents of the deceased who would have inherited by operation of law but did not receive an inheritance on account of a will that was executed, are entitled to the legitime. The legitime is a monetary equivalent of a fraction of the value of the share of the estate that would have passed to the given person.
Who Is Obliged to Pay the Legitime?
In the first instance, the legitime may of course be claimed from the testamentary heir. It is important to note, however, that the testamentary heir is not the only person who may be liable. This is of critical significance in circumstances where the estate was empty (or nearly empty) and the deceased had disposed of their assets during their lifetime — for example by giving them away by way of gift (darowizna).
Subsidiary Liability of the Donee
In such circumstances, the donee bears subsidiary (pomocnicza) liability alongside the testamentary heir. Where the testamentary heir is unable to pay the legitime — or at the very least where the person entitled to the legitime demonstrates that the prospects of successful enforcement against the heir are very limited — that person may claim the legitime from the individual who received gifts (darowizny) from the deceased. The legal basis for such a claim is Art. 1000 of the Civil Code.