Statutory distribution of an estate

Once you, as an heir, have decided whether to accept or renounce the estate, the next step is to determine whether the statutory distribution applies. Under Dutch law, the statutory distribution applies where there is no will, or where the will provides that the statutory distribution applies. The statutory distribution can also be excluded by will.

When does the statutory distribution apply?

If no will has been made, the law determines who the heirs are. This is known as intestate succession under Dutch law.

The statutory distribution applies where the deceased leaves a spouse or registered partner and at least one child. If one of the children has already died, grandchildren can take that child’s place by substitution (plaatsvervulling) within the statutory distribution. It is also possible for stepchildren to be designated in a will to participate in the statutory distribution.

Important for the surviving spouse/registered partner

What is the statutory distribution?

The statutory distribution places you, as the surviving spouse, in a stronger position in relation to your children.

In short, it means that, upon death, you as the surviving spouse/registered partner automatically acquire all assets of the estate. You are also responsible for paying the debts of the estate.

Your children then receive a non-enforceable monetary claim against you, corresponding to their inheritance share. This is referred to as the child’s share (kindsdeel). The fact that the child’s share is not immediately enforceable means that the claim remains outstanding against you as the surviving spouse/registered partner. The child’s share becomes enforceable only when you die, are declared bankrupt, or enter the statutory debt restructuring scheme.

A will may provide otherwise. It is therefore always important to review the contents of the will carefully.

Reversing the statutory distribution

As the surviving spouse/registered partner, you can reverse the statutory distribution. This means that your children once again stand on an equal footing with you. In that case, your children share in the assets and also become liable for the debts. This can be attractive, for example, for tax reasons.

Please note: you must reverse the statutory distribution through a notary within three months of the death. After that, it is no longer possible.

Important for the children

What if the surviving parent remarries?

If the surviving spouse remarries, this may pose a risk to you as a child in relation to your claim to your child’s share. For example, estate assets with emotional value could end up with the new spouse.

The legislature has recognised this ‘step-parent risk’ (stiefoudergevaar) and has therefore granted children a number of wilsrechten (statutory election rights). These are rights you can invoke when a step-parent risk arises, for example if the surviving spouse/registered partner intends to remarry, or upon the death of the surviving spouse/registered partner.

Make use of your wilsrechten (statutory election rights)

In short, the wilsrechten allow you, as a child, to ask the surviving spouse to transfer assets to you up to the value of your non-enforceable monetary claim.

For example, a painting that has emotional value to you. You can ask the surviving spouse to transfer the painting to you subject to a usufruct. This means the painting may remain in place, but when the surviving spouse dies you, as the child, acquire full ownership of the painting. The step-parent cannot then claim it. In this way, the asset functions as a form of security for the monetary claim.

Why engage our inheritance lawyers?

Is there a dispute about the statutory distribution, or would you like to know more about it in general? Please contact one of our experienced inheritance lawyers.