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Should the statutory portion be abolished?

reading time 4 minutes published on 18 June 2021

Should the statutory portion be abolished? Or should the statutory portion, as it is currently stated in the Dutch law, continue to exist? If so, should this be maintained unchanged or should changes be made by the legislator? Such questions about the statutory portion remain a recurring theme and, in fact, they have been discussed for a long time and date back to before the introduction of the current inheritance law in 2003.

Situation before and after the 2003 legislative amendment

A nice detail is that before 2003, the Netherlands had a different regulation concerning the statutory portion. In those days, the disinherited child was an heir of the estate and could claim the goods of the estate by invoking the statutory portion. Since 2003, the Netherlands belongs to the category of countries with a regulation whereby a disinherited child is not an heir but only a creditor with a monetary claim on the estate. Other countries with similar rules are Germany, France and Belgium.

Report on the statutory portion and Parliamentary questions

The statutory portion has relatively recently been subjected to a critical review. In December 2020 the Centre for Notarial Law (in Dutch: Centrum voor Notariaal Recht (CNR)), of the Radboud University and Netwerk Notarissen published  the ‘Statutory portion Report’. In this report the CNR presents a survey on how the Dutch public and professionals today view the phenomenon of statutory portion. It would be going too far to go into the contents of this report in this blog, but the report can (in Dutch) be downloaded at www.legitiemeportie.com.

Partly as a result of this report, in February 2021 Vera Bergkamp, member of the Dutch parliament for D66, asked Sander Dekker, the Minister for Legal Protection, about the desirability of the statutory portion in today’s inheritance law.

The answers to these parliamentary questions give a glimpse of how politicians in The Hague currently think about the legacy, although it must be said that Minister Dekker does not expressly take a position, because he believes that ‘given the caretaker status of the government’ a possible decision on the legacy ‘should be left to the next cabinet’. So the hot (?) potato is passed on, but in the answers to the parliamentary questions the Minister does state that there are fundamental legal convictions on which the statutory portion is based.

These fundamental legal convictions consist, on the one hand, of the conviction that every testator must be able to determine, without legal restrictions, to whom he wishes to bequeath his assets. In other words: the testator’s freedom of testament should be paramount in inheritance law. On the other hand, because of family ties, consanguinity and the idea of care, children and their descendants are entitled to part of their parents’ estate (in the form of a statutory portion). Another argument for the statutory portion is that it creates a barrier against unequal treatment of children of the testator and that it protects the parents against the influence of third parties. A social argument in favour of the statutory portion is that the disinherited child, by receiving a statutory portion from the estate of his deceased parent, does not have to rely on state support.

Revising the statutory portion in the short term?

Minster Dekker however, in view of these different (partly) principal legal convictions and ‘the further consideration required’ in combination with the caretaker status of the government, does not feel it is up to him to decide whether the current legislation on the statutory portion should be revised. When reading between the lines of the answers to the parliamentary questions, the Minister does not seem to feel much about a (rough) revision of the legislation on the statutory portion. The chance that a next cabinet will (suddenly) turn 180 degrees on this, seems small since the VVD (Minister Dekker’s political party) became the largest party in the most recent elections. Although followed by D66 (Vera Bergkamp’s political party), given the current political situation, the statutory portion probably lacks political relevance.

The statutory portion in your situation

The statutory portion remains a theme that occupies legislators’ minds. For the time being, I do not expect this legal concept to be changed any time soon. This means that children who have been disinherited, but also children whose share of the estate is smaller than the statutory portion, for example as a result of gifts to other children, will for the time being remain entitled to this.Would you like to know what the right thing to do in your situation would be? Please feel free to contact me to discuss what I can do for you.

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