Dutch international succession law: be wise and be informed

It is wise during life to think about what you want to happen to your assets after death. This is perhaps even more true for expats. In the case of international influences it is not always possible to predict in advance how your estate will be settled. However, you can get informed about this and – in most cases – take control.

After a decease, it must be determined which law applies to the settlement of the estate. After all, each state has its own rules of law. Within the European Union this question is answered on the basis of the EU Regulation on succession law. As will be explained below, it is nevertheless not always easy to determine the applicable law.

Choice of law

According to the aforementioned EU Regulation a choice of law can be made during life (by will). You can choose the law of the state of your nationality at the time of the choice of law or the time of death. Your estate will then be settled according to the law of this nationality.

If no choice of law is made, the general rule applies. In that case, the law of the state of the last habitual residence is applied. The last habitual residence is not the same as domicile: it is the social residence. Meaning, the country with which the person’s social and civic life is most closely connected. To determine this, important factors include the length of residence in the state as well as the circumstances and reasons for residence. This can already generate quite a bit of discussion.

Once the applicable law has been determined, we are not there yet. This is because the EU Regulation uses a system whereby not only the succession law of the designated state is applied, but also the international law of this state. This means that the law of the designated state can refer to the law of another state. Are you still following?

What does the Court say?

The problem is best explained by a recent decision of the District Court of The Hague dated January 25, 2023 (ECLI:NL:RBDHA:2023:882). In that case, testator had the Dutch nationality, but lived in Sri Lanka at the time of death. Testator had assets in both countries, including real estate and bank accounts. The Dutch court in the end declared the law of Sri Lanka applicable. But this did not end the matter. Indeed, according to the EU Regulation, Sri Lanka’s international law had to be applied. Sri Lanka’s international law referred to the law of the Netherlands for certain parts of the estate.

The conclusion in this case was that the real estate located in Sri Lanka should be settled under the law of Sri Lanka and the remaining property (real estate and all property rights in any state) under Dutch law. It is difficult to imagine that testator foresaw this during his lifetime.

The applicable law can have far-reaching consequences for how your estate is settled. There are different views in states on important issues such as the legitimate portion (a minimum child share for disinherited children) and the rights of a surviving spouse. As follows from the above, without a will with a choice of law, it is not always possible to predict how your estate will be settled. If you want to avoid surprises, get informed about the different law systems and, if desired, record your choice of law.

More information about  the Dutch international succession law?

Should you encounter any problems during the settlement of an estate, feel free to contact GMW lawyers. We will be happy to assist you.

May you waive spousal support?

Can you agree to waive spousal maintenance before marriage?

In my practice as a divorce lawyer, I frequently deal with international divorces. Part of a divorce may include the subject of spousal maintenance: upon divorce, one of the spouses may be entitled to maintenance payments.

In this blog, I discuss whether an agreement entered into before or during the marriage stipulating that spousal support may not be requested in the event of divorce, is legally valid. So, may you waive spousal support?

Dutch agreement

In the Netherlands, it is possible to go to a notary before or during a marriage and draw up prenuptial agreements. Agreements in a prenuptial agreement can be made about the financial consequences of a divorce. In the Netherlands, however, it is not possible to agree in a prenuptial agreement that partner maintenance cannot be asked for in case of divorce. This was recently confirmed by the Supreme Court (ECLI:NL:HR:2022:1724). The Supreme Court ruled that – despite the existing freedom of contract – it is not possible to agree on a nil clause before marriage. Such a nil clause violates Article 1:400 paragraph 2 of the Dutch Civil Code. This article stipulates that a contract may not waive maintenance due under the law.

The foregoing also has a social implication. The stage of life in which prenuptial agreements are made is often a different one from that in which the divorce takes place. At the start of the marriage, it is often impossible to foresee what choices will be made and also what health will look like. This is only possible at the time of divorce.

In short, in the Netherlands it is not possible to waive spousal maintenance by agreement.

Foreign agreement

If you have drawn up an agreement abroad, however, in some cases it may be possible to exclude spousal support in case of divorce. To do so, however, several requirements must be met.

An agreement with a nil partner maintenance clause is only legally valid in the Netherlands if a foreign law is designated as applicable law in the agreement. Moreover, you cannot designate every law as applicable. In accordance with Article 8 of the 2007 Hague Alimony Protocol, there must be a connection with the law designated as applicable law. In addition, the designated applicable law – unlike Dutch law – must have the possibility to agree on a nil clause before the marriage. Furthermore, Article 8 mentioned above requires that both parties have full knowledge and awareness of the consequences of their choice at the time of concluding the agreement. In addition, application of the designated law must not lead to manifestly unfair or unreasonable consequences for one of the parties.

In short, in some cases, an agreement entered into abroad may well result in no spousal support upon divorce in the Netherlands. However, this requires several requirements to be met. Thus, because of these requirements, when divorce is imminent, you cannot designate an arbitrary law because it has a nil clause.

To conclude

May you waive spousal support? In principle, it is not possible to agree by an agreement that no spousal support can be requested in case of divorce. In international situation and if various requirements are required, an agreement with a nil clause for partner alimony may still be legally valid in the Netherlands.

More information

Do you have a legal question or need more information? If so, please contact us directly.

The main rule is the ‘first shot rule’

If you and/ or your partner want a divorce, and your circumstances are international, you should ensure that you are aware of your options. Did you know that it is possible for courts in two different countries to have jurisdiction? And did you know that they can both pronounce the divorce? For instance, if you are both Dutch nationals and you live abroad. Or if one or both of you live in the Netherlands and one or both of you is not a Dutch national. The main rule here is the first shot rule. In other words, the court of the country in which divorce proceedings are first initiated is authorised to pronounce the divorce. This rule was confirmed in a 24 May 2022, ruling by the Amsterdam Court of Appeal (ECLI:NL:GHAMS:2022:1542).

Two divorce proceedings in two different countries

In the above case, the spouses were married in India. The wife has Dutch and Pakistani nationality and lives in the Netherlands. The husband has Indian nationality and lives in India. The husband initiated divorce proceedings in India on 5 May 2015. Divorce has not been pronounced in India as yet. The wife filed for divorce in the Netherlands on 10 August 2020.

The main rule is the ‘first shot rule’

If divorce proceedings have been initiated in two different countries, the principle of lis pendens applies in the Netherlands. This means that a decision on the same issue cannot be made by a court in two different countries. Does a situation arise where proceedings on the same subject – in this case, divorce – are pending in two different countries? Then the rule is that if the proceedings were brought last in the Netherlands, the Dutch court must stay the case until it is decided by the other court. Once the foreign court has rendered a judgement and this judgement is recognised in the Netherlands and can be enforced, the Dutch court declines jurisdiction.

Exception to the rule

The principle of lis pendens was invoked in the Amsterdam Court of Appeal decision mentioned above. In this case, the ‘first’ petition for divorce had been filed by the husband in India seven years ago. It was unknown when a final decision would be made in those proceedings. Let alone whether this would be in the foreseeable future. The husband was in a position to further delay the proceedings in India. Given this, the wife had a compelling interest in continuing the divorce proceedings in the Netherlands. As there were no further reasons why the decision in India should be awaited, the court — in derogation of the principle of lis pendens — did not stay the decision on the divorce pending a judgment in India. Despite the fact that the proceedings in India were initiated earlier, it upheld the judgement of the court granting the divorce.

In conclusion

It is very important in an international situation to check whether courts in multiple countries have jurisdiction over the divorce. This applies irrespective of the exception made by the Amsterdam Court of Appeal to the ‘first shot rule’. This particularly relevant if you prefer to have the divorce proceedings take place in one of the two countries and you are concerned that your partner may have a preference for another country. In that case, it may be wise to start the proceedings in your preferred country on short notice, to avoid the decision being made in the other country.

More information

If you and/ or your partner want to get a divorce, you will need the assistance of a lawyer. You should make sure you are well informed by a lawyer. If you need assistance with your divorce,please do not hesitate to contact me.

Spousal alimony in divorce proceedings in the Netherlands

Are you married and you are heading for divorce (or dissolution of registered partnership)? Then you may need to pay your spouse spousal alimony. However, when it comes to international divorces (a divorce with an international element for example by different nationalities or when you live abroad), it is not uncommon that foreign law will apply. If foreign law applies, you have to ask for advice from a lawyer abroad. Today we will discuss spousal alimony in divorce proceedings in the Netherlands.

Applicable law

When the divorce proceeding takes places in the Netherlands, the Dutch court does not automatically apply Dutch law to spousal alimony requests. What law applies depends on your personal circumstances. However, in general (from a Dutch perspective on the international private law) the main rule is that the law applies of the country where the alimony creditor has their habitual residence. There are exceptions to this rule.

Do you and your spouse both live in the Netherlands? Then it is likely that Dutch law applies to your alimony request. Whether your spouse is eligible for spousal support depends on the financial situation of you and your spouse.

Spousal alimony

When Dutch law applies, the starting point with spousal alimony is that your (soon to be ex-) spouse can continue to live in a reasonably suitable position also after the divorce. This means that when your spouse could fulfil her own needs and can live in a reasonably suitable position also after the divorce, he or she might not be eligible to spousal alimony. To find out, you need to do a calculation, mainly based on your income.

Spousal alimony is calculated on the basis of, (1) the need of the maintenance creditor (the person claiming alimony), (2) what is the alimony creditor earning and does the alimony use their earning capacity and (3) the ability to pay of the maintenance debtor (the person who should pay alimony). This is specialist work. Knowledge of the law, case law and practical experience are essential for this.

Waiving the right of spousal alimony

In the event of divorce (or dissolution of registered partnership) it is possible to waive the right of spousal alimony. However, you and your spouse need to agree on this.  You also need to lay this arrangement down in a (divorce)agreement.

Can you exclude the right to spousal alimony in case of divorce by prenuptial agreement? The answer is no. The Supreme Court ruled in November 2022 (and in line with previous case law) that such agreements are null and void. If you have included such paragraphs in prenuptial agreements, the agreement is not valid.

Even if you have included in the prenuptial agreement that all the (marital) assets remain separate, your spouse can still apply for spousal alimony. This also applies to the situation where your spouse receives part of your assets from the matrimonial property settlement.

At the end of the marriage in the event of divorce, a person’s eligibility for spousal alimony is only assessed. When calculating spousal alimony, it will also be necessary to consider whether it is reasonable. For example, your spouse must also do it’s best to use his/her earning capacity. If there is a large asset, the alimony creditor may have to intervene to fulfil his/her own needs. This depends on your personal circumstances.

To conclude

Are you wondering how much spousal alimony you have to pay to your spouse in the event of a divorce? Or would like to have more guidance? At GMW lawyers we specialise in advising and calculating both spousal- as child alimony. Please contact us if you have any legal questions. We are happy to help.

Divorce and exclusion clauses under Dutch law: inheritances

There is no global consensus as how to best divide the assets of divorcing couples. Thus, there are sharp differences between the divorce laws across countries. Expats in the Netherlands are often in for a big surprise when they discover they have to share their inheritances with their (former) spouse. Read this article to learn about divorce and exclusion clauses under Dutch law.

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Expat relationships and relocations

When relationships end, many expats prefer to return to their home country with their children and be near loved ones. Here, I will discuss the legal options, specifically from the position of an expat in connection to relationships and relocations.

The parent wanting to relocate with their children – to another country or back to their home country – needs permission from the other parent. This is mainly because moving affects the contact between the children and the ‘not-moving’ parent. For many expats, this can lead to a difficult situation. During a relationship, it’s easier to make joint decisions about the country of residence. But after separating, it’s often more difficult. Does one parent not consent to the relocation? Then the parent wanting to move can ask the court for a ‘substitute consent to move.

Court criteria

When granting permission to relocate, the court will decide in the best interests of the children. In a Supreme Court ruling, the court determines the criteria by which an application for a ‘substitute consent to move’ should be evaluated. However in practice, the court’s decision often comes down to a] the right–and the need–of the one parent to move and rearrange his/her life and b] the other parent’s right to maintain contact with their children. In many cases, the court finds the importance of children maintaining  frequent contact with the ‘not-moving’ parent, outweighs the wishes of the parent wanting to relocate. On these grounds, a ‘substitute consent to move’ is often denied.

Court decisions

In recent case law however–in the specific situation of expats–a ‘substitute  consent to move’ has been granted by the court. The court then attaches  more importance to the wishes and needs of the parent relocating with their children than to the right of the other parent maintaining frequent contact. This is because the ‘moving parent’ can work and has a house/network in the country of origin. Furthermore, it is taken into consideration that continuing to live in the Netherlands can affect the state-of-mind of the parent wanting to move, which may have repercussions on the children. It is also considered important that the parent staying in the Netherlands can (easily) move to–or at least visit– the country of origin as this parent often has family living there as well. For expats who sometimes feel trapped in the Netherlands after a separation, this is a positive development.

Conclusion

It remains difficult to obtain a ‘substitute consent to move’. As it’s in the best interests of the children to have frequent contact with both parents. However, for expats living in the Netherlands and wanting to relocate or return to their home country with their children, recent case law now offers an opening to obtaining that permission.

Contact

If you have any questions regarding expat relationships and relocations, please do not hesitate to contact us.

What about death and inheritance law?

When you come to the Netherlands as an expat, most expats will not be concerned with death and inheritance law. Yet you may also have to deal with death when living in another country. To avoid leaving your loved ones with questions, it may be wise to think about this while you are alive. After all, each country has its own rules. Inheriting abroad can still be extremely complicated.

Inheritance Regulation Law

As an expat, you may have lived in multiple countries and have accumulated assets in multiple countries. But what happens to your estate when you die? Which law applies to your estate? When it comes to inheritance law, each country has its own rules. This also applies to the applicable law. Some countries follow the nationality of the deceased, others the country of residence of the deceased or where the deceased accumulated his assets. In practice, this can cause quite a few problems if someone has a connection with several countries.

All members of the EU, except for Denmark, Ireland and the UK have tried to solve one of these problems by uniforming their rules on the applicable law for inheritance law.  Namely, the law that will be applied to the estate is the law of the country in which the deceased had his or her habitual residence at the time of their death. In short if you have not arranged anything regarding your estate and you pass away when you are living in the Netherlands, Dutch law may apply to your estate.

Choice of law

It is possible to influence your choice of law. Since the arrival of the Inheritance Regulation you can only make a choice of law for the country of which you hold nationality. Based on the inheritance regulation your choice of law will apply in all member states and this can’t be overruled. The only way to specify a choice of law in the Netherlands is in a will. A will is an official deed. According to the Dutch Civil Code it could only be drawn up by a notary. Lawyers can’t draw up a will.

If you move abroad from the Netherlands or move to a country outside the member states of this inheritance regulation, it might be useful to gain advice from a lawyer and/or notary to verify how these countries handle inheritance law.

 

Help with settling estate

You and/or your partner might not have been thinking about inheritance law. However, if the worst possible scenario occurs and you and/or your partner or (another) family member dies, the estate will have to be settled. If you are not familiar with (Dutch) inheritance law we advise you to seek information first before you start settling the estate. In the Netherlands, unlike in other countries, as an heir you can become liable for debts of the deceased in certain situations. Therefore it is important that you are informed about this.

 

Get advice you can trust

Are you living as an expat in the Netherlands or are you Dutch and planning to live abroad? Then our advice is to start thinking about how you want to take care of your estate. For example, start thinking about a will if you have not already got one. If you have a will, find out how the Inheritance Law Regulation might effect your will.

 

GMW lawyers has English-speaking inheritance lawyers (no notaries) who can help you prevent problems, or solve existing inheritance issues. A lawyer can help you if you need help or advice with settling your estate. They can also inform you about your rights or help you find out which law applies. Our lawyers have a broad international network which can help if the settlement requires cooperation with foreign countries. We have a lot of experience with international clients/expats and have the expertise to advice you on the possibilities. Please note that if you want to draw up a will in the Netherlands, a civil-notary is the only one whom is entitled to draw up this official deed.

More information

If you have any questions, would like more information or if you need help, then please do not hesitate to contact us. Our (international) inheritance law experts are happy to assist you.

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Death in the Netherlands – how to deal with inheritance issues

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Statutory indexation of child and spousal alimony

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Misconceptions in international family law

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A divorce under common law in the Netherlands

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