POLAND Law and Practice Contributed by: Wiesław Oleś, Krzysztof Rysz, Joanna Sarkowicz and Kamil Kania, Oleś, Rysz, Sarkowicz
4. Marital Property and Succession 4.1 Property Regimes During Life and Deathtime Rights and Protections Statutory and Contractual Property Regimes The default matrimonial regime in Poland is the statu- tory community of property, which encompasses assets acquired by either spouse during the mar- riage, with specific exceptions for personal property such as gifts or inheritances. Spouses may modify or terminate this regime through a notarial agreement (prenuptial or postnuptial), opting for the separation of assets or an extended community property model. The community of property automatically dissolves upon a court-ordered separation or a final divorce decree, at which point assets are typically divided into fractional shares. Lifetime Dispositions and Consent Requirements Managing joint assets during one’s lifetime is subject to statutory restrictions, requiring the other spouse’s consent for significant transactions, including the dis- posal or encumbrance of real estate or making sub- stantial donations. Under the Family and Guardianship Code, a transaction conducted without the necessary consent remains in a state of “suspended effective- ness” until ratified by the other spouse, otherwise facing potential nullity. This regime is notably more restrictive than testamentary freedom, as a spouse may independently designate the future distribution of their expected share in joint assets within a will without prior consent. Succession Consequences and Management Paralysis Upon the death of a spouse, the community of prop- erty is converted into fractional co-ownership, with the deceased’s estate typically comprising their per- sonal assets and a one-half share of the joint property. This transition often leads to “management paraly- sis”, as the surviving spouse and other heirs become co-owners of every individual asset within the former community pool, requiring unanimous consent for management decisions. To ensure business conti- nuity and operational control, succession planning often prioritises holding key assets, such as company shares, as personal property rather than joint matri- monial property.
Spousal Inheritance Rights and Exclusions A surviving spouse is entitled to inherit regardless of the matrimonial property regime in place, falling into either the first or second inheritance group depend- ing on the presence of descendants. While spouses qualify for a full inheritance tax exemption under the “Group 0” status – subject to timely reporting – they may be excluded from statutory succession if the deceased had filed for divorce or separation based on the survivor’s fault. Furthermore, spouses who are legally separated at the time of death are automati- cally barred from statutory inheritance rights under the Civil Code. 4.2 Prenuptial and Postnuptial Agreements Types of Agreements and Formal Validity Poland recognises both prenuptial and postnuptial agreements, which must be executed as a notarial deed to be valid under the Family and Guardianship Code. Spouses may establish a total separation of property, where each retains assets acquired both before and during the marriage, or opt for a separation with equalisation of gains upon dissolution. While full asset disclosure is not a strict statutory requirement for validity, the concealment of significant facts may allow a party to void the agreement based on a legal error ( błąd ). Impact on Estate Planning Efficiency A contractual separation of property simplifies suc- cession by ensuring the testator owns assets indi- vidually rather than within a community pool, as the default community regime often leads to management paralysis upon death. By maintaining assets as per- sonal property, a testamentary heir can exercise full corporate rights in a simplified way, bypassing the need for the unanimous appointment of a representa- tive required under joint ownership. Relationship With Inheritance and Legitime Rights It is critical to note that a marital agreement regarding property separation does not automatically exclude a spouse from statutory inheritance or legitime claims. The agreement only regulates the ownership of assets during the lifetime of the spouses and does not waive future succession rights. To fully exclude a spouse from inheritance or forced heirship, a separate notarial agreement for the renunciation of inheritance must
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