People of the slightly older generation may remember it. If you got married and you have children, you have to take good measures to prevent your children from forcing you to sell your house. It was like this. If someone died and - for example - left behind wife and two children, then there were three heirs who could each claim their share. If there was a house worth €300,000, for example, the children could each claim "their" ton. If there were then no savings, this could lead to the house having to be sold. Fortunately, in many cases, family relations were good, the children did not take it into their heads to force the surviving parent to take such a rigorous step. But spouses at the time did well to draw up a will, regulating and protecting the position of the surviving spouse.
The law of succession is governed by Book 4 of the Civil Code. This book came into force as of January 1, 2003. In doing so, attention was given to the position of the surviving spouse through the legitimate division.
What exactly does this regulation entail?
Article 4: 13 of the Civil Code stipulates that if the testator is married (and not separated from bed and board) and has descendants at the time of his death, a so called "legal division" will apply. Note: being separated from table and bed is different from living permanently separated from each other. In addition: the children do not necessarily have to have been born from the marriage to that spouse. Suppose someone used to have a relationship with a woman and that from that relationship children were born. Then they separate and the man meets a woman whom he marries. They do not have children. The man dies. He then leaves behind a wife and children. Legal distribution, then, unless he expressly excluded it (by will).
This way of division means that the surviving spouse receives the entire estate. So there is nothing to divide, because the law has already allocated: to the spouse. The children each receive a claim against the surviving spouse in the amount of their inheritance share (often popularly mistakenly called "child's share"). So spouse and two children: three heirs, three inheritance shares. The children each have a claim in the amount of one-third of their father's estate. However, that claim is not immediately payable and thus cannot be monetized. This can only be done when the surviving spouse dies, is declared bankrupt or ends up in the WSNP (Natural Persons Debt Rescheduling Act).
In the meantime, can the surviving spouse enjoy spending everything? Yes, he may. The child cannot actually do anything against this. Besides the fact that his claim is not due and payable, it is not at all certain that the amount of the claim is still there when it does become due and payable. They also do not receive interest on it; the law states that interest is only due to the extent that the legal interest rate exceeds 6%. So if the legal interest rate is 8%, the children get a 2% interest payment. However, this is not compounded (so no interest on interest) and is calculated only for whole calendar years. The legal interest rate is currently (May 2022) 2%, so right now it is not an issue at all.
However, some clear ground rules apply. The surviving spouse is obligated to pay the debts of the estate, as well as testamentary expenses. The children will receive an inheritance tax assessment for their share of the estate. The surviving spouse is obligated to pay it for the children.
Undoing
A legal division may not be convenient for the surviving spouse. It would take us too far to discuss why this may be the case (there are often tax motives involved). But the legislator has provided for this. The surviving spouse (and therefore not the children!) has the legal possibility to undo the division by means of a declaration recorded by notarial deed; this deed is then registered in the public estate register. However, the time limit for this is very short: it must be done within three months of the testator's death.
Legal entitlements
Legal entitlements are inseparable from this system of division. The legislator arranged this to protect the children's claim for certain situations. There are four of them.
I will explain them using the following situation: father and mother, married to each other, two children, John and Karen. Father dies. Mother thus acquires the estate, and John and Karen each have a claim of one-third of the estate against their mother. We already know that these claims are not due and payable.
The law of succession is governed by Book 4 of the Civil Code. This book came into force as of January 1, 2003. In doing so, attention was given to the position of the surviving spouse through the legitimate division.
What exactly does this regulation entail?
Article 4: 13 of the Civil Code stipulates that if the testator is married (and not separated from bed and board) and has descendants at the time of his death, a so called "legal division" will apply. Note: being separated from table and bed is different from living permanently separated from each other. In addition: the children do not necessarily have to have been born from the marriage to that spouse. Suppose someone used to have a relationship with a woman and that from that relationship children were born. Then they separate and the man meets a woman whom he marries. They do not have children. The man dies. He then leaves behind a wife and children. Legal distribution, then, unless he expressly excluded it (by will).
This way of division means that the surviving spouse receives the entire estate. So there is nothing to divide, because the law has already allocated: to the spouse. The children each receive a claim against the surviving spouse in the amount of their inheritance share (often popularly mistakenly called "child's share"). So spouse and two children: three heirs, three inheritance shares. The children each have a claim in the amount of one-third of their father's estate. However, that claim is not immediately payable and thus cannot be monetized. This can only be done when the surviving spouse dies, is declared bankrupt or ends up in the WSNP (Natural Persons Debt Rescheduling Act).
In the meantime, can the surviving spouse enjoy spending everything? Yes, he may. The child cannot actually do anything against this. Besides the fact that his claim is not due and payable, it is not at all certain that the amount of the claim is still there when it does become due and payable. They also do not receive interest on it; the law states that interest is only due to the extent that the legal interest rate exceeds 6%. So if the legal interest rate is 8%, the children get a 2% interest payment. However, this is not compounded (so no interest on interest) and is calculated only for whole calendar years. The legal interest rate is currently (May 2022) 2%, so right now it is not an issue at all.
However, some clear ground rules apply. The surviving spouse is obligated to pay the debts of the estate, as well as testamentary expenses. The children will receive an inheritance tax assessment for their share of the estate. The surviving spouse is obligated to pay it for the children.
Undoing
A legal division may not be convenient for the surviving spouse. It would take us too far to discuss why this may be the case (there are often tax motives involved). But the legislator has provided for this. The surviving spouse (and therefore not the children!) has the legal possibility to undo the division by means of a declaration recorded by notarial deed; this deed is then registered in the public estate register. However, the time limit for this is very short: it must be done within three months of the testator's death.
Legal entitlements
Legal entitlements are inseparable from this system of division. The legislator arranged this to protect the children's claim for certain situations. There are four of them.
I will explain them using the following situation: father and mother, married to each other, two children, John and Karen. Father dies. Mother thus acquires the estate, and John and Karen each have a claim of one-third of the estate against their mother. We already know that these claims are not due and payable.
- When their mother declares a planned new marriage, John and Karen have the right to claim from her the transfer of goods to the value of their inheritance. Those goods must come from their father's estate. John and Karen will then receive bare ownership of these goods, and mother can reserve usufruct. That way she can use the goods as usual, but John and Karen are the owners. This avoids hassles when the spouse dies before the stepparent.
- If John and Karen have made use of this option and their mother dies, they can now claim delivery of the assets in question, of which they therefore already have bare ownership, from the stepparent. After all, their mother's usufruct ended with her death.
- The third will arises when the mother, who has remarried, dies while the stepparent is still alive. Then again the legal distribution applies, because she leaves behind husband (step-parent) and children (John and Karen). A messy situation then looms. At the death of their father, John and Karen first obtained a non-exigible claim against their mother. This would become due upon her death. But now that she has remarried and once again the legal distribution applies, John and Karen would again obtain a non-exigible claim, this time against the step-parent. Therefore, in that case, they could claim from their step-parent the transfer of the assets belonging to the estate. This is again bare ownership; the stepparent can reserve usufruct.
- Finally. See point 3; now suppose that the step-parent in turn remarries. However, John and Karen did not have the opportunity to exercise the will under point 3. The estate of John and Karens parents now threatens to end up completely in foreign hands: those of their step-parent and his new wife. They are then entitled to claim payment in the form of transfer of assets from their mother's estate or from the matrimonial community of property that existed between her and her previously deceased husband.