BELGIUM Law and Practice Contributed by: Alain Van Geel and Emilie Van Goidsenhoven, Tiberghien
3.2 Forced Heirship Belgium has a well-defined legal framework for inher- itance, which includes a forced heirship system that ensures children and spouses receive a portion of the estate. Children are entitled (together and regardless of their number) to (at least) 50% of the counterval- ue of the estate (leaving a portion of 50% that the deceased can dispose freely). The surviving spouse is entitled to a reserved portion corresponding to 50% of the estate in usufruct, which must in any case include the usufruct over the family home. Belgian law does not provide for elective share stat- utes in the common law sense. These forced heirship rules are matters of public order. Of course, heirs are not forced to invoke the forced heirship rules, but it is a right they have. Based on the European regula- tion on successions, a Belgian resident, if a citizen of another country, can opt for the inheritance rules of the country he or she is a national of. These family protection rights cannot be waived in advance. Waiver is only possible after the opening of the succession. However, if gifts have been made that would involve the forced heirship rules, an inherit- ance pact can be undersigned by the donor and his or her heirs in order to waive forced heirship rules in relation to that gift, providing some strict formalities are respected. 4. Marital Property and Succession 4.1 Property Regimes During Life and Deathtime Rights and Protections The treatment of marital property upon death depends primarily on whether the spouses are married under the statutory community regime (a regime of separa- tion of assets combined with a limited community of assets acquired during marriage) or a separation of property regime. Under the statutory community of property regime (which applies by default in the absence of a marital agreement), assets acquired during the marriage form part of the community property, while assets owned prior to the marriage or received by gift or inheritance remain separate. Upon death, the community is first
liquidated: one half belongs to the surviving spouse by virtue of matrimonial property law and does not form part of the deceased’s estate. Only the deceased spouse’s own property and his or her share of the community fall into the estate and are subject to suc- cession rules. Under a separation of property regime, each spouse retains ownership of his or her own assets, and the estate consists solely of the deceased spouse’s per- sonal property. Within the legal regime, to dispose of or alienate com- mon assets, the consent of both spouses is required. If the consent of one spouse is lacking, he/she may subsequently seek the annulment of the transfer (without automatically obtaining it, as this will depend on whether the transfer harmed the interests of the household). However, the management of the com- mon estate is concurrent, meaning that either spouse may independently perform acts of management related to the common property. The management and disposition of a spouse’s separate (own) property is carried out by that spouse alone. Lifetime gifts made by the deceased are, in principle, taken into account for the calculation of the reserved portions. If such gifts infringe the reserved share of the children or the surviving spouse, they may be subject to reduction after death. Reduction generally takes place by way of monetary compensation, but may, depending on the circumstances, also be effected in kind. 4.2 Prenuptial and Postnuptial Agreements Belgian law recognises and enforces both prenuptial and postnuptial agreements. Prenuptial agreements (marriage contracts) must be executed by notarial deed prior to the marriage. They primarily govern the matrimonial property regime, allowing spouses to opt out of the statutory community regime in favour of a separation of property regime or a tailored community arrangement. Postnuptial agreements must likewise be executed by notarial deed during the marriage and allow spouses to modify their matrimonial property regime.
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