A lot of people wonder whether a child can be ‘disinherited’ by his parent(s) as a result of which a child receives nothing from the estate of his/her parent(s).
The answer is (in principle): yes, it is possible to be disinherited. But no, this does not have to mean that you will not receive anything from the estate of your parent(s) since the legislator has determined that children are entitled to a portion of the estate of their parent. This right is called ‘the statutory portion’ or ‘legitime’. The person who claims his/her statutory portion is also called a ‘legitimizer’. Only children (descendants) who are named as heirs by the law can claim their statutory portion. This means that children who have been disinherited can still claim their statutory portion. It is also possible that the grandchildren of a disinherited child can claim the statutory portion of their (disinherited) father or mother.
What is a statutory portion?
The legislature has determined that the statutory portion is a monetary claim. Please note that the statutory portion should not be confused with the heirship. If a child has been disinherited, that child is not an heir, even if he/she claims the statutory portion. A legitimizer only becomes a creditor of the inheritance. Legally, this is important because creditors have different/lesser rights than heirs.
How is the statutory portion calculated?
The statutory portion amounts half of the value over which the statutory portion is calculated, divided by the number of persons left behind by the testator mentioned in article 4:10 paragraph 1 under a of the Dutch Civil Code.
An example: if parents A and B have three children (C, D and E) and parent A dies, each of the children has, in principle, a statutory right of 1/2 of 1/4, which is 1/8. So, when the children invoke their legitimacy, they are each entitled to 1/8 of “the value over which the statutory portions are calculated. This value is called the legitimacy mass. The value that corresponds to 1/8 of the legitimacy mass is then the statutory portion.
In practice, it also happens that children are heirs but choose to reject their share of the inheritance. In that case, it is important to realize that after the rejection they in principle also lose their statutory portion. However, the law has an exception to this. In article 4:63 paragraph 3 of the Dutch Civil Code, it is determined that one can renounce one’s share of the estate under reservation of the statutory portion, under the condition that this is explicitly reserved at the time of renunciation. This reservation is called the ‘cash declaration’.
Legitimacy mass
The next question is how the legitimacy mass should be calculated. Starting point is the value of the assets of the inheritance. To this are added certain donations (gifts) since by law is determined that this must be added to the legitimacy mass. From this we subtract the debts as referred to in article 4:7 paragraph 1 sub a to c and f of the Dutch Civil Code. Of course, this does not sound simple and (unfortunately) determining the legitimacy mass is often no sinecure. For example, discussions may soon arise between the heirs and the legitimizer about the question which gifts from the testator should be taken into account when calculating the legitimacy mass.
Provision of information to the legitimizer
More generally, in order to determine the legitimacy of the mass, it is important that the heirs provide all the information by which the calculation of the legitimacy mass can be made. In practice, we seethat this does not always happen.
But the legislator does not leave the legitimizer empty-handed here sincethe law provides that the legitimizer has a right to information. The legitimizer can claim and obtain a copy of all documents necessary for the calculation of the statutory portion so the legitimizer ca inspect all the documents. In practice, it happens regularly that a legitimizer has to go to court to force the heirs and/or the executor to provide information.
Claimability
The statutory portion is claimable only after six months of the death of the testator. However, please note that there can be legal exceptions to this, on the basis of which the statutory portion may not be claimable until much later. For example, it may be that the statutory portion is not due until after the death of the surviving parent.
Expiry
The claim to the statutory portion lapses if an interested party (e.g. the executor) gives the legitimizer a reasonable period of time and the legitimizer does not declare his wish to receive his statutory portion within this period. If no reasonable period of time has been set, the claim expires after five years after the testator and the legitimizer can no longer claim his/her statutory portion. This period of five years starts from the day of death. So, pay close attention to this!
There is a lot to be said about the statutory portion so not everything that is relevant to the statutory portion can be discussed in this blog.
Would you like to know more about the statutory portion (as heir or as legitimary) or do you have any questions as a result of the above? Please feel free to contact one of our lawyers specializing in inheritance law. We will be happy to assist you.