2 January 2023
If no will has been drawn up then statutory distribution rules apply to the inheritance.
If the testator is married at the time of his/her death, the surviving spouse receives the entire inheritance. A child does not receive his/her share of the inheritance immediately. Instead, the child receives a monetary claim for the amount of his/her share of the inheritance. This amount is not due until both parents die. This is to protect the surviving spouse. What can a child do, if the surviving parent wants to remarry?
Remarriage of the surviving parent may create a problem for a child from the first marriage. This is because if the remarried parent dies and no will has been made, the statutory distribution rules apply again. The entire inheritance then reverts to the surviving spouse. This is the stepparent. The child receives a monetary claim, which is not due until the death of the stepparent. As a result, it can take a long time for a child to claim his/her parents’ inheritance. There is no guarantee that after the death of the stepparent, there will still be sufficient assets to satisfy the monetary claim of the child. Moreover, there is no guarantee that certain property with emotional value will still exist at that time.
To address these concerns, the child can exercise his/her optional rights. There are four optional rights: two for the inheritance of the first deceased parent and two for the inheritance of the surviving parent.
If the surviving parent indicates a desire to remarry, the child can ask that parent to transfer assets. The maximum value of the child’s monetary claim against the surviving parent is the value of the property. This parent is obliged to transfer the property at the child’s request. The parent will then retain what is known as usufruct. This means that the child becomes the owner of the assets, but the parent may continue to use the assets. The usufruct ends upon the death of the parent. From then on, the assets become the full property of the child. The assets therefore do not pass to the stepparent after death.
If the surviving parent dies, the child’s monetary claim becomes due and payable as a result of the first parent’s death. The child can then choose to receive property from the inheritance in the amount of the monetary claim. The stepparent is obliged to cooperate in this. For example, the child can safeguard property with emotional value. The transfer of the property therefore relates to the discharge of the monetary claim resulting from the death of the first parent.
If the surviving parent remarries and then dies, the surviving parent (in this case the stepparent) receives the entire inheritance. Again, the child only has a monetary claim against the stepparent because of the death of his/her own parent. The child can ask the stepparent to transfer property on the basis of his/her monetary claim against the surviving parent. The stepparent retains the usufruct and may continue to use the property, until death.
If the stepparent subsequently dies, the monetary claim is due and payable to the child as a result of the death of the surviving parent. At the child’s request, the heirs of the stepparent are also obliged to transfer property up to the value of the monetary claim. For example, this could be property that the child has an emotional connection to.
As a child, you may have concerns about a stepparent spending your inheritance or the disappearance of certain assets with emotional value. The exercise of the above optional right ensures that certain assets from the estate are preserved. It can also prevent the surviving parent or stepparent from spending the entire inheritance.
Hans dies without leaving a will and owned a house. He has one daughter, Dorine. Hans married again before his death. The entire inheritance therefore goes to his second wife, Ellen. Dorine is concerned that Ellen will spend her inheritance. For that reason, Dorine can exercise an optional right with regard to Ellen. Dorine can demand that part of the house be transferred to her. This part of the house will be in her name. Ellen may continue to use the house, but Dorine has safeguarded her inheritance.
Do you have any questions about a remarriage of the surviving parent or would you like legal advice? Please do not hesitate to contact me directly.
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