Since Jan. 1, 2003, legislation regarding inheritance law has changed.
The law now states that upon the death of one of the spouses or registered partners, everything goes to the survivor. The children receive a claim against the surviving spouse in the amount of their inheritance share. This is called the legal distribution.
For the record, registered partners refers to people who have registered their partnership with the civil registry; this is done in much the same way as entering into a marriage. Therefore, this legal regulation does not apply to cohabitants who have not entered into a registered partnership. It is irrelevant here whether or not a cohabitation contract has been concluded.
Since the legal distribution thus only concerns married couples and registered partners, it is still necessary under current inheritance law for cohabitants to make a cohabitation contract and/or will if they wish to leave the surviving partner as well cared for as possible.
Under current inheritance law, there are more options for cohabitants to protect the surviving partner from any claims by children than under the old law.
A cohabitation contract establishes the "rules of the game" between the cohabitants, for example, an arrangement regarding contributions to household costs and an arrangement regarding the partner's pension.
A cohabitation contract can also include a residence clause. A survivorship clause ensures that upon the death of one of the cohabitants all common property goes to the survivor.
If one of the cohabitants has private assets (for example, a bank account, securities or a house in his name), then a will is also needed to ensure that these assets also go to the surviving partner.
Will in case there are no children
In case the deceased does not leave any children (or grandchildren), a will in which the partner is appointed sole heir cannot be affected.
For many years now, parents, brothers and sisters have had no legal means to frustrate the arrangement made by the partner in favor of the surviving partner.
Wills in case there are children
Under current law, it is possible to "disable" the deceased's children by will by including a non-enforcement clause in the will.
This clause ensures that the children cannot claim their inheritance shares when their parent dies. They can then claim their inheritance shares only upon the death of that parent's partner.
This arrangement can be made both in case the partner is the other parent of the children (cohabiting partners with joint children) and in case the partner of the deceased is not the other parent of the deceased's children (cohabiting partners with children of one of the partners).
If this clause is included in the will, in order for the clause to be effective, there must be a notarized cohabitation contract.
If there is no will or cohabitation contract, the cohabitant partner of the deceased has, in principle, no rights. However, the law still contains some regulations in favor of the cohabiting partner, such as:
- continuation of tenancy: in case the partner is registered as a co-tenant with the landlord, the surviving partner can continue to live in the rented house;
- temporary continuation of use of house and contents: in case there was a house owned by the deceased and the partner lived together with the deceased in that house and had a common household, the partner gets the right to continue to live in this house for another 6 months and to use the contents located in that house for another 6 months.
In principle, if a cohabiting partner acquires something as a result of the death of the other partner, inheritance tax (formerly called "inheritance tax") is due.
Spouses and registered partners fall into rate group I. Inheritance tax is 10% on the first € 154,197.00 and 20% on the excess, and there is an exemption of
in principle € 804,698.00 (rate 2025). Cohabitants fall into the same rate group as spouses and registered partners and receive the same exemption if they meet the following conditions for a period of 6 months prior to death:
- they are both of age; and
- they run a joint household; and
- They are registered in the population register at the same address; and
- they have a notarized (cohabitation) deed which includes a mutual duty of care; and
- they are not blood relatives in the direct line (parent-child); and
- they do not meet the above conditions with another person (multiple relationship).
If there is no notarized (cohabitation) deed, the aforementioned rate group and exemption also applies to persons who meet the other conditions and who, up to the time of death, have maintained a joint household for at least 5 years and are registered in the population register at the same address.
Cohabitants to whom the foregoing does not apply are subject to the inheritance tax in tariff group II, i.e. 30% over the first € 154,197.00 and 40% over the surplus, with an exemption of
€ 2,690.00 (rate 2025).
In order to limit the inheritance tax as much as possible, especially if the cohabitation has lasted less than 5 years, it is very important to conclude a cohabitation contract. Of course, there should then also be a will in favor of the partner.
Since the changes in the Inheritance Tax Act as of January 1, 2010, there is a rule that one can only have one partner for inheritance tax purposes.
For example, if someone who is married and not (yet) divorced starts living with another person and concludes a cohabitation contract with that other person, the married persons remain each other's partners for Inheritance Tax purposes. Thus, despite the cohabitation contract and meeting the other requirements, the married person's new relationship still falls into rate group II.
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