On the Effects of Renunciation of Succession in the Light of the Right of the Renouncing Party’s Descendants to Legitime

In the current legal setting, a contract to renounce succession is the only permissible agreement concerning the inheritance of a person who is still alive. The construction of this instrument may, however, raise reasonable doubts given the normative regulation of its effects. The binding force of a contract to renounce succession depends on the will of the parties thereto, as the provision of Article 1049(1) of the Polish Civil Code is of a dispositive nature. According to this provision, the renunciation of succession also affects the descendants of the renouncing party, unless agreed otherwise. Given that the Civil Code (Article 1049(1)) provides that the renouncing party and their descendants are to be treated as if they did not live to see the opening of the succession, as a result of the contract, not only will they not inherit under the law, but they will not be entitled to a force share of the estate (legitime), either. In view of the protective function of legitime and its ratio legis, such a normative solution can hardly be endorsed. The point is that it results in abstract disinheritance, that is, a situation in which individuals entitled to legitime are deprived of their right without any justification, i.e. despite the absence of grounds for disinheritance. In addition, the deprivation of their forced share is decided by the testator and a third party, i.e. the heir at law, who, when entering into the contract, does not act on behalf of his or her descendants but only on their own.