NETHERLANDS Law and Practice Contributed by: Willemijn van Duren and Rowena Zee, Arcagna
12. Cross-Border Succession Planning 12.1 Taxation of Cross-Border Estates and Transfers From a Dutch perspective, cross-border succession planning is mainly impacted by interactions between Dutch (tax) law and foreign regimes. Foreign estate/ inheritance taxes (including sub-national taxes) can be highly relevant where family members, assets or entities are located abroad. Dutch gift and inheritance tax is dependent on the residency status of the donor or deceased, so determining the donor’s/deceased’s (and sometimes the recipient’s) position and identify- ing other countries’ taxing rights (eg, based on asset situs) is a key first step. A frequent obstacle occurs in the interaction between common law and civil law, especially where wealth is held in a trust. Dutch tax analysis often applies attri- bution (“look-through”) rules to trust assets (rather than taxing purely by reference to actual distribu- tions), which can produce unexpected outcomes if a beneficiary is a Dutch resident (or becomes a Dutch resident). This is particularly relevant in inbound situ- ations involving US, UK or Australian family trusts, where local trust taxation concepts may not align with the Dutch attribution approach. Another recurring cross-border issue concerns Dutch nationals who have emigrated: for Dutch gift and inheritance tax purposes, they may remain deemed Dutch tax resident for a period of ten years, which can create double taxation exposure if a gift is made or death occurs during that period. As the Netherlands has a relatively limited network of estate/inheritance tax treaties, relief often depends on domestic unilat- eral rules and careful asset-by-asset co-ordination. Finally, differences in marital property and succes- sion regimes can be decisive (eg, in fideicommissum structures and in cases where an unequal division on dissolution of the marital community could be treated as a taxable acquisition under Dutch deeming rules expected to take effect from 1 January 2026).
Stepchildren do not automatically inherit as a child. They can, however, be included by will (including in a testamentary “statutory division” arrangement). In that case, the same tax treatment as for children applies. 11.2 Conflicts and Divergent Laws In Dutch practice, divergences in how a family rela- tionship is legally recognised in another jurisdiction can directly affect succession planning outcomes (eg, who qualifies as an intestate heir, who has forced heirship-type claims, and who benefits from spousal/ child tax treatment). Such conflicts are mainly handled through Dutch private international law rules in Book 10 of the Dutch Civil Code and, where applicable, EU instruments on succession and family law recognition. A family status validly established abroad or con- firmed in a foreign judgment or act will generally be recognised in the Netherlands unless recognition is refused on limited grounds – most importantly where recognition would be manifestly contrary to Dutch public policy (public order), or where basic proce- dural standards were not met (depending on the rel- evant instrument/regime). If the foreign legal concept does not map neatly within Dutch categories, Dutch authorities may “adapt” the effect to the closest Dutch equivalent, insofar as that is consistent with the appli- cable recognition framework. Based on case law, Dutch law may recognise a foreign family law legal fact or legal act even where it is not recorded in an official deed, provided it is sufficiently certain that the status exists under the foreign law. The party invoking recognition bears the duty to plead and prove the foreign status, and recognition must not be barred (eg, by public order). In practice, this means that cross-border families should anticipate eviden- tiary issues early (eg, collect foreign statutory declara- tions, registry evidence, court orders, and expert opin- ions on foreign law), because the “status question” often determines the “succession and tax question”.
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