The system of the legitimate portion in the Polish law of succession : remarks de lege lata and de lege ferenda

The subject of the article is the analysis of many problematical matters related to the system of the protection of the closest family members of the deceased provided by the Polish law - a system based on a pecuniary claim against the heirs which can be described as a legitimate portion. The article in particular concerns its relation to the constitutional principle of the freedom to testate and the problems of its adequacy to the contemporarily occurring social changes. Today all the European legal orders provide the protection of the closest family members of the deceased after his or her death when the deceased excluded those persons entirely or partially in his or her last will. The Polish law of succession provides such protection by ensuring to the family members a pecuniary claim against the deceased's heirs. There are many concepts justifying the limitation of freedom to testate by the ensuring to the deceased's closest family members the benefits against his or her last will. The most significant reason justifying the protection of family members is the view to their interests and to the duties connected with the formal family ties (family solidarity) but there are also other justifications of such protection, e.g. the maintenance function. The reasons for the protection of the deceased's family members in the Polish law are still partially live but this protection in its contemporary form restricts the freedom to testate too much and can lead to the frustration of the deceased's last will. It is also too big financial burden for the heirs. It is not correct that the Polish system of the legitimate portion is based only on the formal family ties between the deceased and the member of his or her family and does not take into account the material relations between them, the financial status of the family member or his or her contribution into the household of the deceased. Currently we can see many very significant social changes, most notably in family structure, which are of great importance in the law of succession. The higher and higher life that the current system of a legitimate portion has to work in different circumstances than those existing in the time of passing of the Polish Civil Code. Nowadays it is not the best system of protection of the deceased's family members, so the changes of this legal institution are unavoidable. The proposal de lege ferenda described in the article consists in replacement of the system of a legitimate portion by the right to elective share which would be more adequate to the contemporary social reality that the system of the legitimate portion in its current form.