How can you prevent an inheritance from ending up with your child’s partner?

One way to achieve this is by including an exclusion clause (uitsluitingsclausule) in your will. This clause is frequently used and ensures that your child does not have to share the inheritance with their partner in the event of a divorce.

Exclusion clause in a will

An exclusion clause can be included in a will to ensure that the inheritance passes only to your own children, and not to their partners.

Disadvantages of an exclusion clause

Many people assume that an exclusion clause guarantees that the inheritance will remain within the family. However, this is not always the case. It is important to distinguish between two situations: the death of the child and divorce.

In the event of death

When an exclusion clause applies, the inheritance becomes the private property of the child. If the child dies before their partner, the assets may still pass to the partner — depending on the contents of the child’s own will. The exclusion clause only protects against division of the inheritance in the event of a divorce.

In some cases, an exclusion clause can even create complications if the marriage ends by death. For tax reasons, it is often better if the assets are divided equally between both spouses upon death. The exclusion clause can prevent this. To address this issue, a ‘soft’ exclusion clause was developed. This version provides protection in the event of divorce, but not in the event of death.

In the event of divorce

The exclusion clause generally does provide protection in a divorce. However, it can also have disadvantages. For example, an inheritance that is subject to an exclusion clause may affect spousal maintenance. Your child may receive less maintenance because they own private assets. Even though the inheritance does not fall into the marital community, it may still be taken into account when determining financial arrangements after divorce.

In addition, the inheritance may still need to be divided in a divorce, depending on how private property is defined. The child can decide how to use their private assets, and may choose to spend the inheritance during the marriage. The financial consequences of doing so are explained in our earlier blog post: Right to reimbursement of gifts and inheritance under an exclusion clause.

Conclusion

It is possible to include an exclusion clause in a will. In principle, this ensures that the inheritance passes to the child and, in the event of a divorce, not to the child’s partner. However, even with such a clause, this does not always mean the partner cannot benefit from the inheritance.

More information

Do you have questions about inheritances subject to an exclusion clause or about reimbursement rights? Please feel free to contact us.