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NEW INHERITANCE LAW (PART II)

The broad outlines of the innovations were presented in the first article. Some components are discussed further here. (contribution and surviving spouse) (sequel)

CONTRIBUTION :


Contribution is only available for donations to the children and grandchildren.

These are considered to be an advance on the inheritance.

This does not apply to the other heirs. (only shortening if the reserve is affected).

An explicit exemption from contribution is normally made in the deed of donation. This can also happen later.

If donation was made by notarial deed, the change (eg to exemption from contribution) must also be done by notarial deed[1].

For hand gifts (or bank gifts) this is not necessary, according to commentaries[2]. It must have the form of a "disposition among the living". This can also be done by a will.

How the contribution is made, it had already been mentioned that for the heirs this isn’t  calculated on the basis of the value of the property at the time of the donation any more, but indexed (consumer prices), except when this would be a donation subject to usufruct ( than at the time of death).

Because these rules are now mandatory, they can be deviated from, provided that an agreement is reached between the donor and the donee.

Exemption can also take place via will, and then the value is taken at the time of death.

For bequests to non-heirs, therefore, shortening can only take place, and this is done in kind.


Longest living partner


* When in conjunction with children, he / she receives the usufruct on the "entire" estate (= what is present at death + donations by the testator during his marriage (or period of legal cohabitation[3])) to children or third parties subject to usufruct (and to the extent that this reservation of usufruct was still available at the time of the death of the testator + donations to children or third parties affecting her reserve).

* When in conjunction with others (than children / grandchildren): 


a. With brothers, sisters of the testator: full ownership of real estate that he had in communion or joint ownership (only) with the testator (even ratio 1% -99%);

 b. nephews, nieces, uncle, aunt and third parties: full ownership of the entire estate.


The further (new) rule is that this usufruct of the surviving spouse is charged as much as possible on the available portion, and therefore as little as possible on the reserve of the children.


In the event that the testator would have donated to third parties, and only the family home  remains on which the surviving survivor has its reserve[4], the third party beneficiaries must provide compensation (capitalized value of the usufruct of the surviving spouse) for the kids .


[1] Cass. 5.6.2014, T.Not., 645

[2] A.L. Verbeke, Inheritance law 2018: new Belgian inheritance law revisited, RW. 2019-2020, page 45

[3] art. 858 § 5bis CC

[4] the long-lived person therefore has usufruct on the marital residence and household effects as reserve, and 1/2 value of the usufruct of the estate


1 septembre 2020 18:33