Parents and children: inheritance law

Since Jan. 1, 2003, legislation regarding inheritance law has changed.

Most of the changes in inheritance law concern married couples (or registered partners) with children.

Below is a summary of the legal rules that apply if one dies without having made a will (intestate inheritance law).

Example:

Husband and wife are married in general community of property as it was before January 1, 2018. In this general community of property, the assets of both spouses are common.

They have two children. Husband dies.

Legal distribution

The surviving spouse (in this example: the wife) automatically becomes the sole beneficiary of the estate. She can independently dispose of the estate without the cooperation of the children. The children receive a claim against their mother in the amount of their normal inheritance share.

This is called the legal distribution.

Since in the example the parents were married in full community of property, the inheritance amounts to half of the total assets and debts (€ 180,000.00) and the claim of each of the children is therefore 1/3 of € 180,000.00 = € 60,000.00. The children can only claim this amount when mother dies or in case she would be declared bankrupt or the legal debt restructuring scheme would apply to her.
Note: the legal distribution works between your spouse/registered partner and your own children. For example, if you wish to include children from a previous marriage of your spouse, it is necessary to make a will to do so.

Registered partnership

With a spouse is equated a registered partner. Since January 1, 1998, the law allows for the possibility of a registered partnership; one can officially register as a partner at the civil registry. This registration is done in much the same way as entering into a marriage.

Cohabitants (who have not entered into a registered partnership) with or without a cohabitation contract are not subject to the legal distribution under the new inheritance law. If they wish to name the partner as heir, a will is required.

Where reference is made below to a spouse, this also includes the registered partner.

Interest

The principal amount of the children's claim (in the example €60,000.00) will be increased annually "on paper" by a percentage corresponding to that of the legal interest rate, insofar as this percentage is higher than six. If the legal interest rate is 7%, as it was in 2024, then the interest to be paid is 1%; if the legal interest rate is 5% then no interest is added. Interest addition occurs only on the principal amount and not on the interest already added (simple interest). The interest does not have to actually be paid, but is added to the claim.

Currently, the statutory interest rate is again 6% (2025). Therefore, there is no interest in 2025.

Undoing legal distribution

There are conceivable situations in which the statutory distribution is undesirable or less desirable. These include the case where the surviving partner is admitted to a care home or nursing home or in the event that the house belonging to the estate should go to one of the children.

The distribution can be undone by the surviving spouse. Note that this is a power of the spouse and not of the children!

If a child does not appreciate the legal distribution, then that child cannot do anything to undo the legal distribution, only the spouse of the deceased can do so.

A partial undoing is not possible; the undoing of the legal distribution applies to the entire estate.

The undoing is done by making a declaration by notarial deed within three months from the date of death.

It is therefore important to contact the notary as soon as possible after the death to discuss whether or not an undoing is desirable - also in view of possible tax advantages.

Rights of the children (wills)

Through the legal distribution, the surviving spouse has become the sole beneficiary. The children only have a claim.

Under the law, the children have the ability to protect their rights in certain situations.

They are given the power to secure goods, for example goods with an affective value, or to obtain security for the satisfaction of their claim.

These situations are the following:

1. 1. The surviving partner (suppose this is mother) declares the intention to remarry/enter into a registered partnership.
   In the example, assets from father's estate could "flow away" to mother's new spouse.
   In this case, a child can demand that goods worth the size of his claim be transferred to him. Mother, incidentally, has the option to retain the usufruct of those assets. The child then has bare ownership.
2. 2. The remarried parent dies.
   In this case, the claim the child had on the mother becomes due and payable, and the child can demand satisfaction of this claim by mother's new spouse.
3. 3. Suppose a child's parents are divorced and both parents are remarried.
   In case one parent dies, the child gets a claim against his step-parent. The child can then demand that goods worth the size of his claim be transferred to him. The stepparent has the option to retain usufruct of those assets. The child then has bare ownership.
4. 4. The stepparent dies.
   In this case, the claim that the child had against the stepparent becomes due and payable and the child can demand satisfaction of this claim by the heirs of the stepparent.

Other legal rights

Furthermore, certain (groups of) persons have rights that cannot be taken away from them by will. These are called "other legal rights."

These rights are as follows:

A. The spouse and persons who shared a common household with the deceased can claim the continued use of home and contents during the period from death to six months after death.

This right can therefore also be exercised by the person with whom the deceased lived together; it is irrelevant whether or not there was a cohabitation contract.

B. The spouse can claim usufruct of the home and its contents. The spouse must be living in the home at the time of death.

If the spouse is not or not solely entitled to the house and its contents, he/she may demand that the usufruct of the house and its contents be granted to him/her. This may come into play if the deceased has disinherited his or her spouse by will or has set aside the legal distribution.

If the spouse wishes to claim this right, he or she must make this known within six months of the death!

This right therefore only applies to the spouse, who lived in the home belonging to the estate and not to an unmarried cohabiting partner even if there was a cohabitation contract.

C. The spouse may claim usufruct of property other than the home and contents if he/she demonstrates a need for it for care.

On this basis, right of usufruct to, for example, the bank accounts, the second house and the boat can be demanded by the spouse, but only if he/she proves that he/she was left without adequate care.

This right also does not apply to an unmarried cohabiting partner. The right must be exercised within one year of death.

D. A minor child of the deceased may demand a sum of money (lump sum) to the extent necessary for his/her care and education.

E. An adult child of the deceased who has not yet reached the age of 21 years may demand a sum of money (lump sum) to the extent necessary for his living expenses or studies.

F. A child, stepchild, foster child, child-in-law, or grandchild of the deceased may demand a sum of money (sometimes lump sum) for performing labor in the deceased's household or in the business or liberal profession carried on by him without suitable remuneration during the age of majority.

G. A child or stepchild of the deceased may claim transfer of the deceased's business or shares in an N.V. or B.V. of the deceased to that child or stepchild or the spouse of that child/stepchild. The requirements are that the (step) child has a compelling interest, the interest of the entitled party is not seriously prejudiced and the company is continued by (the spouse of) the (step) child or he/she is (future) director of the company.

Disinherited child/legitimate portion

It is possible to disinherit a child in whole or in part. This can happen if, for example, the contact with a child has been broken for a long time, the child is addicted to alcohol, drugs or gambling.

The possibilities of the child to oppose this disinheritance are - compared to the old inheritance law - strongly limited.

First, the child will have to rely on his legitimate portion. This legitimate portion is now always half of the child's normal inheritance.

Second, the legitimate portion is no longer claimable in goods but only in money.

Third, a parent can include in his will a so-called "non-claimability clause." This clause ensures that the legitimate portion is only payable upon the death of the parent's spouse or unmarried cohabitant. In the latter case, there must be a cohabiting partner with whom a notarized cohabitation contract has been concluded.

In which cases is a will necessary despite the legal regulation?

• If you are not married or have not entered into a registered partnership;
• If you want to disinherit a child;
• If you want to include a stepchild (child from a previous marriage/registered partnership of your spouse) in the legal distribution;
• if you wish to extend or limit the times when a child can claim their claim (for example, if the surviving spouse remarries or goes into a nursing home);
• if you wish to adjust the interest rate on the children's claim or make the claim interest-free;
• if you wish to change the inheritance shares of the children;
• if you wish to limit or completely exclude the children's rights (wills);
• If you wish to disinherit your spouse/registered partner;
• If you wish to regulate the custody of your children;
• If you wish to include the exclusion clause ("anti-son-in-law" clause);
• If you wish to appoint an executor of the will;
• if you do not want the children to dispose of their inheritance at the age of 18.

This list is not exhaustive, but in any case indicates that even under current inheritance law it is necessary to make a will in many cases.