Division of joint property of spouses and division of inheritance

Legal guide

automatic translation from Polish

One-man company (business activity)

Doing business is based on your business.


An enterprise is an organized set of intangible and tangible components intended for conducting business activities. It includes in particular:
  1. designation individualising the enterprise or its separated parts (name of the enterprise);
  2. ownership of real estate or movable property, including equipment, materials, goods and products, and other property rights to real estate or movable property;
  3. rights arising from rental and lease of real estate or movable property and rights to use the real estate or movable property arising from other legal relationships;
  4. claims, rights from securities and cash;
  5. concessions, licenses and permits;
  6. patents and other industrial property rights;
  7. property copyrights and related property rights;
  8. business secrets;
  9. books and documents related to conducting business activities.

Divestiture of an enterprise

Instead of dividing a business, heirs or spouses can sell them.

A legal act having the object of an enterprise covers everything that is part of the enterprise, unless the legal act or special provisions state otherwise. Whoever buys an enterprise can still run it under its current name. However, he should place an addendum indicating the buyer's company or name, unless the parties agreed otherwise

The buyer of the enterprise is jointly and severally liable with the seller for his obligations related to the conduct of the enterprise, unless at the time of acquisition he was not aware of these obligations, despite due diligence. The buyer's liability is limited to the value of the acquired business as at the time of purchase, and according to prices at the time of satisfaction of the creditor. This liability cannot be excluded or limited without the consent of the creditor

The sale or lease of an enterprise or the establishment of its use should be made in writing with signatures authenticated by a notary public. The sale of an enterprise belonging to a person entered in the register should be entered in the register. If the enterprise includes real estate, it is necessary to keep the form of a notarial deed.

A company in decline.

In the will, made in the form of a notarial deed, the testator may decide that the designated person acquires the subject of the entry at the moment of opening the inheritance (recovery entry). The subject of a debt recovery order may also be an enterprise.

If the inheritance belongs to an enterprise, the inheritance agreement should be concluded in writing with signatures authenticated by a notary public. However, if the enterprise includes real estate or the enterprise is covered by a succession board, the inheritance agreement should be concluded in the form of a notarial deed.

The court partial division of the estate may occur in particular because the estate includes an enterprise.

If the inheritance consists of an enterprise, the inheritance division includes that enterprise taking into account the need to ensure the continuation of the business activity carried out with its use, unless the heirs and spouse of the testator who is entitled to participate in the enterprise have not reached agreement as to the continuation of this activity.

A company in bankruptcy

Receivables from participation in joint assets of the bankrupt spouse may be claimed in bankruptcy proceedings.

There is a presumption that the joint property created during the bankrupt's business was acquired from the proceeds of that enterprise.

The importance of starting business

As a rule, the assets of an enterprise (sole proprietorship) established during marriage constitute joint property and is subject to normal distribution. However, if the business was started before marriage, the company's assets are in principle the personal property of the spouse who conducts the business. Of course, in this case, any outlays from the joint property on the spouse's company should be returned. However, if the expenditure on the company has brought income to the family, then according to the general principles of settlement of expenditure, they are not refundable.

Enterprise valuation and personal work in a company

Often, the personal work of a spouse who conducts business activity has a significant impact on the value of the enterprise. It may be that it is mainly this work that makes the company profitable. Income obtained by a co-owner of an enterprise due to his personal work is not synonymous with benefits and other revenues from this enterprise, which are subject to settlement in departmental proceedings (decision of the Supreme Court of 16 December 2011, V CSK 28/11, unpublished). Ma t for such significance that the value of such personal work in a company should reduce the profit that the company brings, which is the benefit of the enterprise subject to settlement in the division of joint property.

The Supreme Court of February 3, 2016 (V CSK 299/15) said similarly: if high income from sole proprietorship was achieved mainly due to the knowledge and experience of the entrepreneur who, due to illness, cannot personally continue his current activity, when determining goodwill in the case of a division of joint property after the termination of joint property between spouses, it is justified to omit the value of goodwill. Goodwill means additional value that can be attributed to assets through their organization and joint use.

legal aid
The Law Office of Piotr Stączek Advocate

Wąwozowa 11, piętro 3, 02-796 Warszawa tel: 881 209 300 Fax: +48 22 448 09 97 www.staczek.com