NETHERLANDS Law and Practice Contributed by: Willemijn van Duren and Rowena Zee, Arcagna
For a discretionary trust, Dutch income tax and gift/ inheritance tax analysis often applies a look-through approach (commonly discussed under the Dutch APV concept), under which the assets and income are in principle attributed to the settlor. Upon the settlor’s death, the attribution may (depending on the facts) shift (pro rata) to heirs and/or beneficiaries. To the extent the attributed person is Dutch tax resident, Dutch tax can be due as if that person held the assets directly. Dutch taxation can also arise where the attributed per- son is non-resident, if the attribution relates to Dutch assets (for example, interests in a Dutch company or Dutch real estate), so cross-border “entity classifica- tion” mismatches must be reviewed case by case. For a fixed trust (fixed entitlements), the residence of the person with the fixed claim can be relevant (eg, a Dutch resident may have the entitlement included in the Dutch tax base), and Dutch real estate held through a fixed trust structure may, depending on the qualification and facts, also bring the structure within Dutch (non-resident) corporate income tax on Dutch real estate income and capital gains. 11. Planning for Non-Traditional Families 11.1 Succession Rights and Estate Taxes for Non-Traditional Families Dutch succession law and Dutch inheritance tax do not distinguish between same-sex spouses/regis- tered partners and different-sex spouses/registered partners. Unmarried cohabitants do not automatically have intestate succession rights. If partners wish to protect each other and, where possible, to obtain “partner” treatment for inheritance tax, this should be arranged through a will and, where relevant, a notarial cohabita- tion agreement. A child’s intestate inheritance rights primarily depend on whether a legal parent–child relationship exists. This legal status is also relevant for inheritance tax purposes.
Under Dutch law, a legal parent–child relationship arises if the child is born during a marriage or regis- tered partnership (including within 306 days after the death of a spouse or registered partner), if the child is recognised/acknowledged (which can be done during pregnancy), or through adoption. Where a legal par- ent–child relationship exists, the child inherits from that parent under intestacy, regardless of biological origin or the parents’ marital status. As a rule, a biological child without a legal parent– child relationship does not inherit from the biological parent under intestacy. However, the child may seek a court determination of parentage, even after the par- ent’s death. If parentage is established, it has retro- active effect to the child’s birth and largely the same effects as recognition, including for maintenance and inheritance. In surrogacy and posthumous conception scenarios, inheritance rights likewise follow legal parentage. For these scenarios, it is therefore important to ensure that parentage is legally established in time and, in prac- tice, to consider making a will to avoid uncertainty. As from 1 January 2026, a biological child who has not been legally recognised (and therefore has no legal parent–child relationship) is, for Dutch inheritance and gift tax purposes, treated as a child if biological par- entage is proven by a genetic test; a personal rela- tionship (“family life”) is no longer required. For cases where the biological parent died before 1 January 2026, recent policy has shown that reliance may be placed on the hardship clause to obtain “child” treat- ment for inheritance tax in specific cases (in particular where some form of family life with the biological par- ent could be demonstrated). This published approval appears to relate to inheritances; it is not yet clear whether it also applies to lifetime gifts. Commentary has further suggested that “child” treatment should also carry through in the direct line (so that the bio- logical child’s children qualify as grandchildren), but this remains an open question, particularly where the biological link between the parent and the child can no longer be tested and only a grandparent–grandchild link can be established.
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