What if I am married in the Netherlands but receive an inheritance from abroad?
In this article, Sabrina de Jong from SILK Attorneys & Mediators will explain whether an inheritance that you receive from abroad is seen as a private asset of the spouse receiving the inheritance, or if the inheritance is a mutual asset of the spouses under Dutch law.
Read on to learn more about the different marital property regimes in the Netherlands, how inheritances are dealt with within these regimes and why the content of the testator’s will is of importance.
Different marital property regimes in the Netherlands
If you are an expat and are married in the Netherlands under Dutch law, there are multiple marital property regimes that could be applicable.
Married before January 1, 2018
If you were married before January 1, 2018, and don’t have a prenuptial agreement, then according to Dutch law there is a full community of property. This means that all assets and debts, both prior and past the date of marriage, belongs 50/50 to both spouses. It does not matter in whose name a certain asset or debt is acquired. This also means that, in principle, you both have a 50% claim to an inheritance that accrues to one of you, regardless of whose side this inheritance comes from.
The foregoing also applies if you entered into a registered partnership before January 1, 2018, without drawing up partnership conditions.
Married on or after January 1, 2018
If you got married on or after January 1, 2018, and did not draw up a prenuptial agreement, according to Dutch law this means that you are married in a limited community of property. As far as inheritances are concerned, this means that they remain outside the matrimonial community of property. Inheritances received before or during the marriage remain yours and you do not have to share them with your spouse.
The above also applies if you entered into a registered partnership on or after January 1, 2018, without drawing up partnership conditions.
Married under a prenuptial agreement
Another possibility is that you and your spouse are married under a prenuptial agreement. This means you went to a notary to discuss the (financial) consequences of your marriage and have set out agreements together on how private and / or mutual assets and debts should be seen.
If you are married under a prenuptial agreement, it depends on what you and your partner have included in this agreement whether you can claim a part of the inheritance your partner receives. This is different in each specific case. This also applies if you have a registered partnership with partnership conditions.
What is in the testator’s will?
Besides determining the applicable marital property regime, it is also important to know if the will of the person who passed away, the testator, contains a provision on how the inheritance should be handled in the event that one of the heirs has a spouse.
In a will, a so-called exclusion clause can be included which stipulates that the assets to be inherited may not benefit a spouse of the heir. Exclusion clauses come in different varieties, but in principle, if there is such a clause, the partner of the spouse receiving the inheritance can’t claim a part of the inheritance. If you have a marital property regime that claims the inheritance is part of the mutual assets of the partners, the exclusion clause overrules this.
The above is also applicable when you have a registered partnership.
A testator living abroad and the Dutch community of property
When a testator is living abroad, it could be that in the home country of the testator an inheritance is always part of the private property of the spouse receiving it, regardless of the applicable marital property regime. Because of this, it could be that in the home country of the testator, exclusion clauses in a will are not common.
Over the past few years, the Supreme Court of the Netherlands has ruled twice on the question of the extent to which a foreign inheritance falls within the (full) community of property. The essence of the Supreme Court's consideration in both rulings reads:
"The circumstance that foreign law applies to the inheritance of assets of a spouse, which differs from Dutch law with regard to matrimonial property rights, may mean that reliance on Article 1:94 paragraph 2, opening words and under a, (old) Dutch Civil Code is unacceptable according to the standards of reasonableness and fairness. The spouse who relies on the restrictive effect of reasonableness and fairness has the burden of presenting and proving the relevant facts and circumstances. The mere circumstance that the foreign law applicable to the inheritance does not know or take as its starting point a general community of property regime for matrimonial property does not suffice in this context."
The Supreme Court has indicated when “unacceptable consequences” may arise. In the first place, it plays a role that foreign law often applies to the inheritance and that foreign law does not recognise the existence of an exclusion clause. It must also be established that it cannot have been the testator’s intention to include the inheritance in the community of property. It is also important whether the testator could have been aware of the consequences of Dutch law. Finally, the question is whether the spouse who receives an inheritance prior to the marriage could have avoided the consequences of the community of property, for example, by concluding prenuptial agreements.
An appeal on the restrictive effect of reasonableness and fairness is not granted lightly by the Dutch Courts. The spouse who invokes this doctrine has the burden of proof, which is no easy task.
If you are aware that you could be receiving an inheritance from abroad, and it is the intention that this inheritance is the private asset of the heir, it is highly recommended to advise the testator to include a written exclusion clause. Based on Dutch law this can be easily arranged with a written statement from the testator. This statement can be added in the will or written down in a separate statement.
If you would like to know if an inheritance received from abroad is part of your marital assets under Dutch law, it is best to first determine whether there is an exclusion clause attached to the inheritance and if not, to further determine what marital property regime is applicable.
For a conclusive answer to the question if there is a legally binding exclusion clause, what marital property regime is applicable, and what the foregoing means for your specific inheritance, it is always wise to present your personal case to an attorney at law. Should you need advice for a family law or inheritance law issue, SILK Attorneys & Mediators are happy to assist.