BELGIUM Law and Practice Contributed by: Alain Van Geel and Emilie Van Goidsenhoven, Tiberghien
compliance obligations, look-through taxation and taxation on the occasion of distributions. 2.3 Forced Heirship Laws Belgium has a well-defined legal framework for inher - itance, which includes a forced heirship system that ensures children and spouses receive a portion of the estate. Children are entitled (together and regardless of their number) to (at least) 50% of the countervalue of the estate (leaving a portion of 50% of which the deceased can dispose freely). The spouse’s reserved portion is 50% of the estate in usufruct. This can com - plicate succession planning, especially if the family wishes to leave control of a business to a specific heir or divide it in a way that does not align with the legal requirements. Of course, heirs are not forced to invoke the forced heirship rules, but they do have the right to do so. Based on the European regulation on succession a Belgian resident who is a citizen of another country can opt for the inheritance rules of the country where they are a citizen. If gifts have been made that would trigger the forced heirship rules, an inheritance pact can be undersigned by the donor and their heirs in order to waive forced heirship rules in relation to that gift, providing some strict formalities are respected. 2.4 Marital Property In Belgium, future spouses can sign a marriage con - tract that needs to be formalised in a notarial deed. There are three permitted and recognised matrimonial property regimes. • A full community property regime, whereby all assets acquired during the marriage are part of the community of property. • A regime of separation of assets combined with a limited community of assets acquired during marriage – this is the default system under Belgian law, and applies if spouses do not choose another regime expressis verbis. This regime entails a sep - aration between the joint assets and the personal assets of each spouse. The joint assets include earned income, which is essential to this regime.
Assets that were acquired prior to the marriage or donations/bequests made in favour of one spouse are personal assets of the spouse. • The regime of separation of property, whereby each spouse remains entitled to their own personal assets (including earned income). There are no joint assets; at most, there are undivided assets held by each spouse for an equal part. Correction mechanisms are possible under the separation of property regime. Within the legal regime, one spouse cannot unilater - ally dispose of or alienate common assets; such deci - sions must be made jointly by both spouses. However, the management of the common estate is concur - rent, meaning that either spouse may independently perform acts of management related to the com - mon property. The management and disposition of a spouse’s separate (own) property is carried out by that spouse alone. Belgium will recognise foreign prenuptial and post - nuptial agreements, provided they have been validly established in accordance with the EU Matrimo - nial Property Regimes Regulation (Regulation (EU) 2016/1103). 2.5 Transfer of Property Purchases and transfers of real estate located in Belgium, including buildings (except new buildings, which are subject to VAT), are subject to real estate transfer tax (RETT) due from the purchaser. The rate depends on the location of the real estate: the default rate is 12.5% of the fair market value in the Walloon and Brussels-Capital Regions, while the applicable rate is currently 12% in the Flemish Region. Where the purchase or transfer of land is subject to VAT, no RETT will be charged. The transfer of a property by gift or inheritance is sub - ject to progressive rates, which vary according to the region in which the property is located and the rela - tionship to the beneficiary (between 3% and 27% in direct line or between 10% and 40% for other person).
67
CHAMBERS.COM
Powered by FlippingBook