NETHERLANDS Law and Practice Contributed by: Willemijn van Duren and Rowena Zee, Arcagna
Furthermore, where the statutory division applies, chil- dren have certain “will rights” ( wilsrechten ) to seek transfer of assets and/or security for the satisfaction of their monetary claims. These will rights may be invoked in specified situations – ie, if the surviving spouse intends to remarry or enter into a registered partnership (in which case the surviving spouse is entitled to retain a right of usufruct), or if the surviving spouse dies after having remarried or entered into a registered partnership. Similar protective rights exist in stepfamily situations. The decedent may exclude these will rights in a will. In addition, Dutch law provides certain other statutory rights that may benefit (certain) children and are pri- marily monetary in nature. For example, a minor child may, if necessary, claim a lump sum for their care and upbringing, and an adult child who is not yet 21 may claim a lump sum insofar as needed for maintenance or study. Further, a child, stepchild, foster child, child- in-law or grandchild may claim compensation (often as a lump sum) for having performed work without appropriate remuneration during adulthood in the deceased’s household or in the deceased’s business or profession. Finally, under strict conditions, a child or stepchild may request transfer of the deceased’s enterprise or shares in a limited liability company to that (step)child (or their spouse), provided the (step) child has a compelling interest, the entitled party’s interests are not seriously prejudiced and the busi- ness is continued by (the spouse of) the (step)child or they will (in future) act as a director. These other statutory rights are only effective if the beneficiary actively invokes them within the applicable statutory time limits, failing which they lapse. 4. Marital Property and Succession 4.1 Property Regimes During Life and Deathtime Rights and Protections Marital property is a key factor in Dutch succession planning, because the estate first needs to be deter- mined by applying the spouses’ matrimonial property regime. Upon death, any matrimonial community is dissolved and settled; the surviving spouse is entitled to their share under matrimonial property law, and only the deceased’s share (plus any separate private assets
and liabilities) forms part of the estate. Depending on the matrimonial arrangement, a spouse may also have a settlement claim at death, which can affect the size of the estate available for heirs and legatees. Lifetime planning therefore often focuses on (i) struc- turing ownership (eg, private assets versus commu- nity assets) and (ii) aligning matrimonial arrangements with the intended testamentary disposition. During life, spouses generally have the ability to man- age and dispose of assets, but Dutch law contains important spousal consent requirements for certain transactions. In practice, one spouse cannot freely dispose of all marital assets without the other spouse’s involvement where statutory consent is required (eg, for certain disposals/encumbrances or gifts); if con- sent is lacking, the transaction may be challenged. 4.2 Prenuptial and Postnuptial Agreements In the Netherlands, pre- and postnuptial agreements ( huwelijkse voorwaarden / partnerschapsvoorwaarden ) are generally recognised and enforceable, provided they are executed by notarial deed before a Dutch civil law notary. For third-party effects (in particular vis-à- vis creditors), registration in the matrimonial property register is relevant. Nuptial agreements are frequently used in estate plan- ning. They primarily operate in property law (matrimo- nial/partnership property regime) and therefore affect succession planning indirectly by determining what assets belong to the deceased’s estate (eg, separate property versus (limited) community property), and whether, on death, the surviving spouse/partner has a contractual claim against the estate (for example under a settlement/equalisation clause payable at death), which is generally treated as a debt of the estate. Dutch law, however, generally prohibits binding “inheritance agreements” ( erfovereenkomsten ) – ie, contracts that purport to determine who will inherit or otherwise dispose of a future estate as such. Marital/ partnership agreements therefore cannot replace a will for allocating inheritance. Certain clauses com- monly used in practice, such as survivor allocation clauses ( verblijvingsbedingen ), are typically character-
120 CHAMBERS.COM
Powered by FlippingBook