By means of Marjolein Hees

Anyone who marries from 1 January 2018 without making a prenuptial agreement will no longer marry in full community of property, but in the so-called limited community of property. The assets that each spouse has built up before the marriage do not fall into this limited community, but belong to the private assets of the spouse in question. In principle, only the assets that a spouse builds up during the marriage fall into the limited community.

An inheritance received before marriage does not fall into the limited community because it was obtained before marriage. What about inheritances obtained during marriage?

The new Limited Community of Property Act expressly stipulates that an inheritance during the marriage not falls within the limited community. By “inherited acquisition” is meant any conceivable acquisition and/or claim as a result of the death of a person.

This makes the new law seem simple: an inheritance obtained before and during the marriage does not fall into the limited community. Unfortunately, it is not that simple.

Spouses can choose to deviate from this by making prenuptial agreements. For example, spouses can agree in these prenuptial agreements that the inheritance obtained during the marriage will still fall into the marital community. The deceased can only prevent this if he/she has made an exclusion clause, which means that the testator has expressly determined that the inheritance does not fall into the community of property in which the inheritor is married.

The new law also offers the deceased the possibility to explicitly stipulate in a will that the inheritance does fall within the marital property community (i.e. an inheritance under an inclusion clause). Spouses who do not wish this will have to agree in a prenuptial agreement that such an inheritance falls outside the marital property community.

In short, even from 1 January 2018 you cannot simply assume that an inheritance received falls outside the marital community. That depends on a number of circumstances.

The new law only applies to marriages entered into on or after 1 January 2018. The old regulation applies to marriages with a wedding date before 1 January 2018. An inheritance received – even if it was received on or after 1 January 2018 – “simply” falls into general community of property. This is only different if the deceased has given the inheritance under the express provision that it does not fall into this community (i.e. an inheritance under exclusion clause).

Do you have any questions or would you like advice? One of the lawyers Van De Boorder will be happy to assist you with this.