Upon the opening of the inheritance, i.e. upon the death of the testator, the heirs jointly enter the entire legal situation of the deceased, thus becoming joint owners of the testator’s entire property. In such a situation, they often decide to divide the estate. This action is aimed not only at breaking the existing bond between them, but at the same time causing a change in the scope of responsibility for inheritance debts. The division of the estate may be judicial or contractual, but they are not entirely equivalent. It is worth noting that the heirs who divide by agreement have a much wider scope of freedom, and this method is not restricted. It is the heirs themselves who decide whether the subject of the section will be the inheritance in whole or in part, and it is up to them to decide on the number of contracts concluded (P. Zdanikowski [in:] Civil Code. Comment. Volume VI. Inheritances (Articles 922-1087) , ed. M. Fras, M. Habdas, Warsaw 2019, art. 1038.)
As stated in the principle adopted in the Polish legal order, as clearly indicated by the content of Art. 1038 of the Civil Code, the judicial division of the estate should cover the estate in full. Both in the doctrine and jurisprudence, this rule refers to the section in terms of the subject and subject. Partial division of the estate is allowed only for important reasons. Moreover, it is widely accepted that the partial division of the estate in the subjective sense, i.e. only between individual heirs, is not possible at all. The only way to be excluded from the community is to relinquish the inheritance shares.
As indicated above – a partial division of the estate, and thus covering not all components of the estate, but only a part of them (G. Karaszewski [in:] Civil Code. Comment, ed. M. Balwicka-Szczyrba, A. Sylwestrzak, Warsaw 2022, Art. 1038), may take place only if important reasons are met, the aim of the action is, after all, „the definitive abolition of the commonality of the estate” (A. Kidyba, E. Niezbecka [in:] A. Kidyba, E. Niezbecka, Kodeks Civil. Volume IV. Inheritances, 4th edition, Warsaw 2015, art. 1038). At the same time, the legislator did not decide to introduce a full legal definition of the concept of important reasons, therefore it had to be developed by the jurisprudence. The assessment is made each time on the basis of a specific factual state. Pursuant to the Act of July 5, 2018 on the management of successive enterprises of a natural person to Art. 1038 of the Civil Code §3 has been added, which exceptionally expressis verbis indicates a circumstance that is considered a valid reason. If the inheritance includes an enterprise – then also usually – there is no doubt as to the legitimacy of the judicial division of the inheritance. What P. Zdanikowski emphasizes in the commentary to the act, however, does not mean full freedom. It is allowed to either divide the enterprise only or a partial division of the remaining components, as a result of which the enterprise will „remain in the joint estate of the estate” (Civil Code. Comment. Volume VI. Inheritances (art. 922-1087), ed. M. Fras, M Habdas, Warsaw 2019, art. 1038).
When assessing the importance of the reasons that may possibly allow the judicial division of the estate in part, one should take into account „both economic considerations and property interests of the heirs” (A. Kidyba, E. Niezbecka [in:] A. Kidyba, E. Niezbecka, The Civil Code. Commentary. Volume IV. Inheritances, 4th edition, Warsaw 2015, art. 1038.). Situations justifying limiting the distribution of inheritance to part of the estate may take place in cases where, inter alia:
- making a division as to a specific subject of inheritance in a certain period would be contrary to its socio-economic purpose or the principles of social coexistence – as indicated by the Supreme Court in its decision of April 14, 2021, file ref. II CSKP 16/21, when making a division leading to the exit from co-ownership, the court should take into account the lawfulness of such action, the principles of social coexistence (Decision of the Supreme Court of April 14, 2021, II CSKP 16/21, LEX No. 3358853);
- the division would be permissible due to the intended use of the item, if the division would not entail a significant change in the item or a significant reduction in value (Decision of the Supreme Court of February 17, 1999, II CKU 63/98, LEX No. 36553.);
- the division of the real estate would result in the creation of two plots, one of which would cover the area necessary for the use of the building located on it, and the other would cover the part unsuitable for investment due to the purpose of high-rise construction of public buildings, as well as due to the hindered access from the street (Decision of the Supreme Court of December 17, 1999, III CKN 502/98, LEX No. 371783).
Among the important reasons, there is also an unanimous application of the heirs for a partial division. However, this thesis is not beyond dispute. Prevailing in this There are liberal postulates, according to which the heirs’ unanimous request to limit the division of the estate to its part can be considered an important reason. The rightness of such a position is supported, among others, by: A. Kidyba (A. Kidyba, E. Niezbecka [in:] A. Kidyba, E. Niezbecka, Civil Code. Commentary. Volume IV. Inheritances, 4th edition, Warsaw 2015 , art. 1038.). On the other hand, P. Zdanikowski, somewhat rightly pointing out that „since heirs may conclude an agreement for a partial division of the inheritance and it depends only on their will, important reasons should be understood rather as objective circumstances” (P. Zdanikowski [in:] Civil Code Commentary, Volume VI. Inheritance (art. 922-1087), ed. M. Fras, M. Habdas, Warsaw 2019, art. 1038.). It seems that the ratio legis of the regulation is closer to such a statement.
Analyzing the provision of art. 1038 of the Civil Code it is impossible to ignore the issue of Art. 46 k.r.o. As they state in connection – for important reasons, it is permissible to limit the division of property after the termination of the joint property that was covered by it. Article 46 of the Family and Guardianship Code, in matters that are not regulated, refers to the provisions on joint inheritance and division of inheritance. As in the case of the Civil Code, the legislator does not directly indicate situations that should be considered a valid reason. However, it is usually assumed that they may be personal, economic, but above all they must be objective (B. Kubica [in:] Family and Guardianship Code. Commentary, ed. M. Fras, M. Habdas, Warsaw 2021, art. 46.). “If a division is limited to a part of the joint property, it is necessary to supplement it. Such a need occurs when the court, for important reasons, made a partial division (Art.1038 § 1 sentence 2 of the Civil Code in conjunction with Art.46 of the CC) or when for other reasons some property remained beyond the division (e.g. one of the spouses concealed the division, that a given item, considered lost, has been found) „(E. Skowrońska-Bocian [in:] Family and Guardianship Code. Commentary, ed. J. Wierciński, Warsaw 2014, art. 46.)