Kto ma prawo do zachowku ?

 

Kto ma prawo do zachowku ? Czy ja się mogę starać o zachowek ?

To jedne z najczęściej zadawanych przez moich Klientów pytań z zakresu spadków.

 

Aby odpowiedzieć na pytanie kto ma prawo do zachowku, trzeba przede wszystkim sprecyzować co to jest zachowek ? Otóż zachowek jest roszczeniem o zapłatę określonej sumy pieniężnej, która przysługuje uprawnionemu, który nie otrzymał należnego zachowku w postaci powołania do spadku bądź w postaci uczynionej przez spadkodawcę darowizny, bądź też postaci zapisu. Roszczenie o zachowek powstaje w chwili śmierci spadkodawcy- a nie za jego życia !

 

Co istotne- osoba uprawniona do zachowku może się starać tylko o zapłatę określonej sumy pieniężnej, a nie o przyznanie określonej części majątku spadkowego.

 

Od kogo można dochodzić zachowku ?

Co do zasady, zobowiązanym z tytułu zachowku jest spadkobierca, ale z analizy kolejnych przepisów kodeksu cywilnego wynika, że jest on zobowiązany w pierwszej kolejności. Zobowiązani do zapłaty zachowku mogą być także obdarowani i zapisobiercy windykacyjni.

 

A kto ma prawo do zachowku ?

Przepis jest jasny- uprawnieni do zachowku są zstępni, małżonkowie oraz rodzice spadkodawcy, którzy byliby powołani do spadku z ustawy, a to oznacza, że w konkretnym stanie faktycznym osoby te musiałyby być powołane do spadku. Jeśli więc żyją zstępni i małżonek spadkodawcy, jego rodzice nie mają prawa do zachowku, gdyż nie byliby powołani do spadku z ustawy. Rodzeństwo spadkodawcy nigdy nie ma prawa do zachowku !

Prawo do zachowku mają zstępni spadkodawcy, a zstępni to nie tylko dzieci, ale i wnuki czy prawnuki. Nie oznacza to jednak, że w danej sytuacji zachowku będą mogli dochodzić oni wszyscy. Wnuki uzyskują bowiem prawo do zachowku dopiero wtedy, gdy dziecko spadkodawcy umarło przed spadkodawcą lub w inny sposób utraciło prawo do zachowku. Jakie okoliczności powodują utratę prawa do zachowku opiszę szerzej w jednym z najbliższych wpisów.

W przypadku jakichkolwiek pytań lub wątpliwości, piszcie śmiało.

 

Pozdrawiam,

Bernadetta Parusińska- Ulewicz

Adwokat

 

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