3 February 2011

Divorce and exclusion clauses under Dutch law: inheritances

By Marieke Morshuis

As there is no global consensus as to how best divide the assets of divorcing couples, there are sharp differences between the divorce laws of different countries.

Expats in the Netherlands are often in for a big surprise when they discover that they have to share their inheritances with their (former) spouse.

Dutch matrimonial law

If Dutch law is applicable to your matrimonial property, the matrimonial regime of the so called ’general community of property’ applies. In short, this means that all debts and assets  – acquired either previous to the marriage or amassed following an inheritance or gift – and independent of the name in which the assets or debts have been registered, are shared form the moment you marry. This can have tremendous financial consequences when a couple decides to divorce…

The far-reaching and often undesirable consequences of the Dutch ’general community of property’, however, can be avoided.

The spouses can make a pre- or post-nuptial agreement in which they agree to which extent they want to share or exclude their debts and assets.
The testator can include an exclusion clause in his/her will stating the inheritance will not fall into the community of property of the beneficiary. Sometimes, an exclusion clause to that effect is automatically incorporated in the testator’s will.

An example: what happens if the husband inherits a sum of money and the couple is married in community of property?

No exclusion clause in the testator’s will

If there is no exclusion clause in the testator’s will, the inheritance falls within the community and the wife will be entitled to half of it. As you can imagine this may lead to many conflicts when the partners decide to divorce and hence will have to share all their belongings, including their inheritances. The husband might find the situation unreasonable, especially when he is, for instance, not entitled to the inheritances of the wife which might be covered by an exclusion clause…

Exclusion clause in the testator’s will

If there is an exclusion clause in the will, the wife is not entitled to a share of the inheritance. So, no problems here.

But what if the inheritance is (partly) spent?!

In case the inheritance or part of it is used to purchase the matrimonial house, he will get a refund for that particular amount in case of a divorce. If the property has increased considerably in value, the husband might even also be entitled to the increased value of the property. In those cases, the remaining of the inheritance and the extent to which he financed the house from his inheritance need to be established.

Now suppose that the husband in our case used his inheritance for house hold costs or to finance a nice holiday. In that case the wife could argue that his inheritance is exhausted, the husband wanted to spend his money the way he did and, therefore, is not entitled to restitution. In most cases, however, the judge does not accept this argument! Even if the inheritance is already exhausted, the man can claim the amount of his inheritance, even if he benefited from it.

These examples go to show, you should be fully aware of your situation to prevent unpleasant surprises.

More information?

If you need more information or legal advice on this topic or any other family law related issue, please do not hesitate to contact us.

Marieke Morshuis

Marieke Morshuis

Lawyer / associate partner

Marieke Morshuis has a large wide-ranging inheritance practice.

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