NETHERLANDS Law and Practice Contributed by: Willemijn van Duren and Rowena Zee, Arcagna
tial reversal is not possible; the reversal applies to the entire estate. Reversal has retroactive effect to the moment the estate devolved, with the result that the heirs become co-owners of the estate’s assets and jointly liable for its debts. The heirs must then agree among themselves on how to settle and divide the estate. The power to reverse the statutory division rests exclusively with the surviving spouse; a child has no right to do so. If a child predeceases the deceased, that child’s descendants (ie, the deceased’s grandchildren) inherit by right of representation. Representation also applies if a child rejects the inheritance. If the relevant child has no descendants, that child’s share accrues to the other heirs in equal parts. If there is no surviving spouse but the deceased leaves one or more children (or descendants inheriting by representation), the statutory division does not apply. In that case, those heirs inherit the estate jointly and in equal shares. The estate then forms an undivided community, meaning that, in principle, the heirs must administer, settle and divide the estate jointly (unless an executor or administrator has been appointed in a will). If there is no surviving spouse and no (grand)children qualify as heirs, more distant relatives inherit under the statutory order (in broad terms: first parents and siblings and their descendants; then grandparents and their descendants; and thereafter more remote ascendants and their descendants), and ultimately the state of the Netherlands. Finally, intestacy can be departed from by making a will. A will can, for example, appoint additional heirs or disinherit heirs, adjust the heirs’ shares, include bequests or legacies, appoint an executor of the estate and provide for administration or other spe- cific rules relating to an heir’s entitlement. However, a testator’s freedom to dispose of the estate is subject to mandatory family rights. 3.2 Forced Heirship Dutch law recognises several mandatory family pro- tections (“family rights”) that can restrict freedom of testation.
Dutch law does not provide for an elective share for the surviving spouse (or registered partner). Instead, the main protections for a surviving spouse are found in (i) the intestacy rules, including the statutory divi- sion described in 3.1 Intestate Succession , and (ii) mandatory statutory rights that may apply even if the spouse is (partly) excluded by will. In particular, the surviving spouse may, under certain conditions, claim continued use of the dwelling and household effects for a period of up to six months following death. This right is also available to any per- son who shared a household with the deceased; a cohabitation agreement is not required. In addition, the surviving spouse (provided they were living in the dwelling at the time of death) may claim a usufruct over the dwelling and household effects and, where necessary for maintenance, a usufruct over other estate assets. These usufruct rights do not extend to an unmarried cohabiting partner, even if a cohabita- tion agreement exists. These statutory rights are mandatory in the sense that they cannot be removed by the testator through a will. However, they are only effective if the beneficiary actively invokes them within the applicable statutory time limits; if not invoked in time, they lapse. Children have additional statutory protections. A child may be (partially) disinherited, but remains entitled to claim their forced share ( legitieme portie ), which is a monetary claim equal to one half of the child’s statutory intestate share (rather than a right in rem to specific assets). Gifts by the deceased dur- ing their lifetime and certain other benefits may be brought into the forced share calculation and may be subject to reduction ( inkorting ) to safeguard forced share entitlements. The decedent may include a so- called “non-demandability clause” ( niet-opeisbaar- heidsclausule ) in their will, which may postpone the forced share becoming due and payable until the death of the surviving spouse or an unmarried cohab- iting partner (in the latter case, provided a notarial cohabitation agreement has been entered into). The forced share must be claimed by the child within five years of the decedent’s death.
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