Poland: Benefit from a family foundation for a spouse: in joint or personal property?

 

Family foundations are becoming more and more popular as a way of managing assets in the family. The founder, i.e. the person setting up the foundation, often chooses the closest relatives, including the spouse, as beneficiaries. However, the question arises: does the property received from the foundation become part of the joint property of the spouses or is it personal property?

Free of charge grant or donation?

Benefits from a family foundation are free of charge, but it is not clear whether they can be treated as a donation. In Polish law, what a spouse receives in the form of a donation becomes an element of his or her personal property. However, the Family Foundation Act does not use the concept of a donation, which leads to certain ambiguities.

What do the regulations say?

In the Polish Family and Guardianship Code, there is a rule according to which items acquired during the community of property by both spouses or by one of them are part of the statutory community. The exception is items included in the separate property of each spouse. Since the benefits from the foundation are not listed in this closed list, it seems that these benefits should be considered part of the joint property of the spouses.

What does the Supreme Court say about this?

However, the Supreme Court in its 2019 judgment emphasised that it is necessary to carefully examine what was the intention (causation) of the transfer of assets. If the benefit from a family foundation is similar to a donation (causa donandi), perhaps it should be considered the personal property of the spouse?

What does this mean for you?

If you are a beneficiary of a family foundation and the division of marital property is at stake, the question will arise as to how to classify the benefit received, e.g. a house or apartment, as belonging to personal or joint property. For now, court practice in this matter is not unambiguous, so it is worth being careful.

If you have any questions about the financial aspects of establishing and running a family foundation, please contact our law firm!

 

For further information, contact:

Iwona Tomaszewska, Junior Partner

Gorazda, Świstuń, Wątroba i Partnerzy adwokaci i radcowie prawni, Kraków

e: iwona.tomaszewska@gsw.com.pl

 

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