What is a statutory minimum share?

Parents may in principle disinherit their children. However, the law provides for a minimum entitlement for each child, known as the statutory minimum share. This statutory minimum share constitutes a monetary claim against the estate. In general, this monetary claim amounts to approximately half of what the child would inherit as an heir under statutory succession law.

Statutory succession law contains the default legal rules that determine who the heirs are and which rules apply if no will has been made. By making a will, these default rules may be departed from; this is referred to as testamentary succession.

Statutory minimum share – child’s entitlement

Parents may choose to disinherit one or more of their children, but this must be done by will. Even so, parents do not have unrestricted freedom to exclude disinherited children entirely from the estate. Children (and grandchildren) are entitled to a statutory minimum share, which allows them to claim a portion of the estate even if they have been disinherited.

Although a disinherited child is not an heir and therefore does not take part in the distribution of the estate, the child is entitled to a specific portion of the estate, including the value of certain gifts made by the deceased parent. The statutory minimum share is purely a financial entitlement and does not confer a right to specific assets. A disinherited child is referred to as a legitimaris and may be regarded as a creditor of the estate.

Claiming the statutory minimum share

To claim your statutory minimum share, you must assert your claim within five years of the testator’s death. This five-year period is strict and cannot be extended. If there is no surviving spouse or partner, the statutory minimum share becomes payable six months after the death.

Please note that even if the statutory minimum share is not yet payable, you must still assert your claim within five years of the parent’s death. This period constitutes a forfeiture period, meaning that extension is not possible. After this five-year period has elapsed, the right to the statutory minimum share lapses.

Right to information

As a legitimaris, you are entitled to all information necessary for calculating the statutory minimum share. Established case law holds that the wording “all relevant information” should be interpreted as broadly as possible, but is nevertheless limited to information required for calculating the statutory minimum share.

Calculating the statutory minimum share

The statutory minimum share is calculated on the value of the assets of the estate. This value is increased by the gifts that are taken into account for this calculation and reduced by the debts.

In general, only gifts made less than five years prior to death are taken into account when calculating the statutory minimum share. However, there are exceptions under which gifts made more than five years before death may still be included.

Any gifts made to the legitimaris must subsequently be deducted.

A child’s statutory minimum share equals half of the value on which the statutory minimum share is calculated, divided by the number of heirs.

Example 1:
calculating the statutory minimum share

Aad and Barbera have three adult children: Charlie, Diane and Erik. The relationship between Charlie and his parents has been poor for many years, leading them to decide to disinherit Charlie by will.

One day, Aad passes away. Charlie’s statutory minimum share amounts to half of the inheritance share to which he would normally have been entitled, which in this case is one eighth of the estate. If Charlie had predeceased his father and had left two children, each of Charlie’s children would have been entitled to a statutory minimum share of one sixteenth.

Statutory minimum share calculated on the legitimaire estate

When calculating the statutory minimum share, not only the value of the assets left behind is taken into account, but also certain gifts made by the deceased during their lifetime. The statutory minimum share is therefore not calculated on the actual estate, but on the so-called legitimaire estate.

The legitimaire estate consists of the actual estate, reduced by certain debts (such as funeral or cremation costs) and increased by certain gifts. This mechanism aims to prevent a person from giving away large sums of money shortly before death in order to avoid these assets passing to the heirs.

The value of a gift is determined by the moment at which the gift was made. For example, if a car worth €20,000 was gifted four years ago, and its value at the date of death is only €8,000, the value taken into account remains €20,000.

Example 2:
calculating the statutory minimum share

Willem passes away, leaving behind his wife Irene and two children, Tessa and Rosa. Willem and Irene were not married in community of property. Willem disinherited Tessa in his will. The estate is valued at €120,000. The two heirs are Irene and Rosa, who each inherit €60,000.

Had Tessa not been disinherited, her inheritance share would have been 1/3 × €120,000 = €40,000. Her statutory minimum share now amounts to 1/2 × 1/3 × €120,000 = €20,000.

If Willem had gifted €15,000 to the ‘Unicef’ foundation three years before his death, the statutory minimum share would amount to 1/2 × 1/3 × (€120,000 + €15,000) = €22,500. Tessa would therefore have a monetary claim of €20,000 or €22,500 against the heirs Irene and Rosa.

 

If, however, Willem had gifted €15,000 not to the ‘Unicef’ foundation but to Tessa herself, the statutory minimum share would be reduced by €15,000. In that case, Tessa would have a monetary claim of €22,500 minus €15,000 = €7,500.

Where the deceased leaves behind a spouse at the time of death, the statutory minimum share does not have to be paid until the death of the surviving spouse. A similar arrangement may be made by will in favour of a partner with whom the deceased shared a household. Until the statutory minimum share becomes payable, the spouse or partner is free to dispose of the inherited assets and to draw on them. In other words, no security needs to be provided for the statutory minimum share.

Additional claim to the statutory minimum share

In addition to disinherited children, descendants who have not been disinherited, or who receive part of the estate through a legacy, may also benefit from invoking the statutory minimum share.

At first glance, it may seem illogical to invoke the statutory minimum share when one has not been disinherited and is already entitled to the full statutory inheritance share as an heir. However, in some cases the statutory minimum share may represent a higher value than that inheritance share. This is because the statutory minimum share is not calculated on the net estate, but on the legitimaire estate. This estate includes the value of the assets, reduced by certain debts and increased by certain gifts made by the testator. These gifts may make invoking the statutory minimum share attractive even for a child who has not been disinherited. This can be illustrated by the following example.

Example 3:
calculating the statutory minimum share

Suppose a mother has three children. Prior to her death, she gifts her daughter Alice a valuable painting worth €50,000 and gifts her son Ben an amount of €30,000. At the time of her death, her estate consists of cash amounting to €20,000.

Under the law, each of her three children is entitled to one third of her estate, amounting to €6,666 per child. Although her daughter Chloé has not been disinherited, she may be entitled to a statutory minimum share that exceeds what she would receive as an heir.

Chloé’s statutory minimum share is calculated as one sixth of the legitimaire estate. This estate consists of the value of the assets (€20,000), increased by the gift to Alice (€50,000) and the gift to Ben (€30,000), totalling €100,000. This results in a statutory minimum share of €16,666.

If Chloé invokes an additional claim to her statutory minimum share, she is entitled, in addition to her inheritance share of €6,666, to an amount of €10,000 from the estate. As a result, the full amount of €20,000 from the estate accrues to her as heir and legitimaris, instead of each child receiving €6,666.

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