NETHERLANDS Law and Practice Contributed by: Nathalie Idsinga and Mignon de Wilde, Arcagna
A child who asserts their forced heirship rights does not become an heir but acquires a monetary claim against the deceased parent’s estate. This claim can be satisfied from estate assets. If the estate lacks suf - ficient assets, the claim can be recovered from cer - tain gifts made by the deceased, including gifts made within five years before death, gifts to descendants and gifts intended to infringe upon forced heirship rights. Children may also recover their claim from trust assets if the trust settlement qualifies as a donation by the deceased. Forced heirship claims can generally be collected six months after the parent’s death. How - ever, the will may stipulate that the claim is only pay - able after the death of the deceased parent’s spouse, registered partner or life partner with whom the parent had a notarial cohabitation agreement. This provision may also apply if the spouse, registered partner or life partner is not the children’s parent. A disinherited spouse or registered partner also has certain statutory rights, including a right of usufruct over the family home and household effects and, if required for their maintenance, over other estate assets, 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 deceased’s heirs; in the event of divorce, between the ex-spouses. Entering into a community of property – either by marriage or by amending marital conditions during the marriage
– is not considered a gift and does not affect the cal - culation 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. With effect from 18 April 2025, a taxable gift is consid - ered insofar as a marital agreement entitles a spouse to receive more than half of the total assets in a com - munity of property. The same applies to a final settle - ment clause. 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 from this tax. For example, sub - ject to strict conditions and upon request, personal income tax may be deferred in cases of business reorganisation (Box 1 or Box 2), the transfer of busi - ness assets or a substantial shareholding represent - ing business assets (see 4.2 Succession Planning ). 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
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