Possessions abroad? Dual nationality? Dutch nationality but living abroad? Getting married abroad or marrying here and living abroad? Are you emigrating to another country during your marriage?
In all these cases, it is not obvious that Dutch law will be applied to your estate or matrimonial property regime. Which law applies is determined by private international law.
To avoid uncertainties, in a whole number of cases you can make a choice of law in a will, in prenuptial agreements or other contracts. If you make a choice of law, you are certain of which law applies to your matrimonial property regime or estate. You thereby also rule out the possibility of an unwanted change in the applicable law as a result of emigration, immigration or naturalisation. Unfortunately, in many situations, which legal systems you can choose is limited.
Private international law does not determine which taxes of which country or countries apply. Thus, depending on where property is located, or whether a deceased or heir lived, three countries may impose inheritance tax on the same asset at the same time. Sometimes it is possible to steer so that no tax is levied anywhere.
On 17 August 2015, the European Inheritance Tax Regulation came into force.
That regulation has brought greater clarity within the EU as to which law applies to someone's estate. This is especially nice for people who have assets in multiple countries. For people who move within the EU and have fewer ties to their home country, the options are limited. This is because the starting point is that the law of your country of residence at the time of death applies. A choice of law can only be made for the law of the country of one's own nationality.
As a result, a Dutchman living in France who makes a will there and then goes to live in Spain will have to change his will in many cases.
European Matrimonial Property Regulation
On 29 January 2019, the European Matrimonial Property Law Regulation will come into force.
First, the regulation looks at whether there is a choice of law. This must have been issued in the same way as is required for prenuptial agreements in the country where the choice is made. In the Netherlands, this is a notarial deed. A choice can be made for the law of the nationality or residence of one or both spouses at the time of the choice. The choice applies to the entire property and, unless expressly provided otherwise, only looks to the future.
If no choice of law is made, then the law
- of the joint first place of residence and domicile after the marriage, and failing that:
- of the joint nationality at the time of the marriage, and failing that:
- of the country with which the spouses have the closest connection together at the time of the marriage, taking into account all the circumstances.
For more information on choices of law, please contact us. We will be happy to advise you.
pkooijman@kooijmanautar.nl
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