NETHERLANDS Law and Practice Contributed by: Nathalie Idsinga and Mignon de Wilde, Arcagna
for their maintenance, taking all circumstances into account. 2.4 Marital Property Prior to 1 January 2018, the default marital property regime in the Netherlands was full community of prop - erty. Under this regime, all assets acquired before or during the marriage – including those obtained by inheritance, legacy or gift – were included in the com - munity, unless the testator or donor expressly desig - nated the property as private. For marriages entered into on or after 1 January 2018, the default community of property is limited to assets acquired during the marriage. Property acquired individually before the marriage, as well as assets received by inheritance, legacy or gift, are excluded from the community. If a marriage ends due to the death of a spouse or by divorce, the community of property is automati - cally dissolved. Upon dissolution, all assets must be divided equally: in the event of death, between the surviving spouse and the heirs of the deceased; in the event of divorce, between the ex-spouses. Enter - ing into a community of property – either by marriage or by amending marital conditions during the mar - riage – is not considered a gift (except for the situation described in 1.5 Stability of Tax Laws ) and does not affect the calculation of the children’s forced heirship rights. Spouses may agree to deviate from the default marital property regime by entering into prenuptial or post - nuptial agreements ( huwelijksvoorwaarden ). Such agreements must be executed by notarial deed before a Dutch civil law notary and may be amended during the marriage. 2.5 Transfer of Property In principle, the transfer of assets in Box 1 or Box 2 constitutes a taxable event for Dutch personal income tax purposes (see 1.1 Tax Regimes ). The transferor is taxed on a (deemed) capital gain, calculated as the difference between the asset’s tax basis and the con - sideration received (or at least the fair market value). For the transferee, the tax basis of the acquired asset is equal to the consideration paid (or at least the fair market value). As a result, the transferee is only taxed on future (deemed) capital gains.
The Dutch Personal Income Tax Act 2001 provides several exemptions to this taxation method. For exam - ple, subject to strict conditions and upon request, per - sonal income tax may be deferred in cases of busi - ness reorganisation (Box 1 or Box 2), the transfer of business assets, or a substantial shareholding repre - senting business assets (see 4.2 Succession Plan- ning ). If such deferral is granted, the transferor’s tax basis is transferred to the transferee. Consequently, any future (deemed) capital gain will also include the gain for which deferral was granted. 2.6 Transfer of Assets: Vehicle and Planning Mechanisms The inheritance and gift tax allowances are mentioned in 1.2 Exemptions . Business succession facilities are discussed in more detail in 4.2 Succession Planning . Dutch tax legislation also provides tax benefits for qualifying country estates. The transfer and ownership of, or shareholdings in, such estates may be wholly or partially exempt from Dutch personal income tax, gift and inheritance tax, and real estate transfer tax. In addition, country estate holding companies may be exempt from corporate income tax. The applica - tion of these exemptions is subject to strict terms and conditions. 2.7 Transfer of Assets: Digital Assets Dutch law does not contain specific provisions on the succession of digital assets. Cryptocurrency is treat - ed as an asset that can be transferred between indi - viduals and bequeathed to a beneficiary under a will. According to the Dutch tax authorities, for personal income tax purposes, income from cryptocurrency is taxed in Box 1 if it qualifies as income from business activities or other activities taxed in Box 1. If not, the cryptocurrency is taxed in Box 3. If cryptocurrency is transferred by inheritance or gift, inheritance or gift tax is due if the holder was (deemed) resident in the Netherlands at the time of death or donation. The tax is calculated on the value of the cryptocurrency at that time and is payable by the beneficiary. See 1.1 Tax Regimes .
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