Division of joint property of spouses and division of inheritance

Legal guide

automatic translation from Polish

Distribution of OFE funds

In the event of divorce

One of the components included in the joint property of the spouses in accordance with art. 31 of the Family and Guardianship Code are funds accumulated on the OFE accounts of each of the spouses. Therefore, they are also subject to the division of property, but this division is specific because it is based on the principles described in the Act on the organization and functioning of pension funds.

If the second spouse already has an OFE account, this account will be transferred, as part of the so-called transfer payment, part of the funds accumulated on the OFE account of the first spouse, due to the second as a result of the division of property. Such payment is made after submitting to the fund proof that the funds accumulated on the fund member's account were due to the former spouse (usually a final decision on the division of property) on the last business day of February, May, August or November.

If the former spouse does not have an account in a given fund, he or she may indicate an account in any fund to which funds due are to be transferred within 2 months. If this is not done, the fund will open the eligible spouse's account itself, to which it will transfer the funds due (of course, it will inform the authorized spouse). If you create an account in OFE in the manner described above, there are several situations in which the authorized person may withdraw all funds from the account once, i.e.:

  1. if he submits an application for payment together with a decision granting him an old-age pension, a retirement pension, a pension for farmers or a retirement pension;
  2. if he does not acquire the right to an old-age pension, provided that they are over 60 for women and 65 for men;
  3. if he submits an application for payment and is a person born before 1 January 1969, provided that the funds accumulated on his account in the amount determined on the day of submitting the application are not higher than the amount constituting:
    1. 50% of the average remuneration if the opening of an account in OFE took place before 1 January 2002 or
    2. 150% of the average remuneration if the account was opened after 1 January 2002.

At the same time, opening an OFE account in the manner described above will not deprive you of the right to early retirement, or automatically transfer pension contributions to the OFE account by ZUS (unless the insured person has applied for it). However, if for some reason ZUS transfers a part of the pension contribution to such an OFE account, these funds are refundable on the principles set out in the Act on the organization and functioning of pension funds.

In the event of death

If, at the time of death, an OFE member was married and there was a community of property between the spouses, the fund makes a transfer payment of half of the funds accumulated on the deceased's account to the account of the deceased's spouse in an open fund. These funds are transferred in the same way as for divorce (described above).

The other half of the funds is transferred to persons designated by the deceased. It should be recalled that by concluding a contract with an open fund, one or more persons may be named by name, on whose behalf the unused funds accumulated on the fund's account should be paid in the event of the death of the account holder. The order can be changed at any time.

The open fund disburses the funds to authorized persons within 3 months, but not earlier than within 1 month from the day of presenting the fund with an official document confirming the identity of the authorized person. Depending on the will of the entitled person, the funds may be paid once or in installments payable for a period not longer than 2 years. If the authorized person is the spouse, the payment of funds can be transferred at his request to his OFE account.

If the deceased did not indicate entitled persons, the funds are included in the estate and are subject to general rules. Payment of funds to heirs is carried out in exactly the same way as for authorized persons, except that they must also show a final order confirming the acquisition of the inheritance.

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