Tag Archive for: Marieke Morshuis

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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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.

Divorce and inheritance news for expats

Are you an international (expat) in the Netherlands? Are you going through a divorce? Have you received an inheritance or gift? If your answer to these questions is yes, read on…

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Inheritance law for expats in the Netherlands – key considerations

Inheritance is fundamentally a difficult subject to think about, but as an expat with family in other countries, it can be even harder as you have to deal with contradictory and confusing international laws during a difficult time. Here are some key considerations to simplify inheritance law for expats living in the Netherlands.

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Pay your ex-partner’s divorce costs?

Most Dutch marriages are still based on community of property. But who pays the lawyers’ costs in the event of a divorce? Does this come under the marital estate or do the spouses pay their own costs?

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A divorce under common law in the Netherlands

In most European countries, the legal system is based on Roman law, with the law laid down in codes. In Anglo-American countries, the law, known as common law is laid down in jurisprudence based on customary law. Countries such as the United States, the United Kingdom and Australia have a legal system based on customary law. In practice, this difference in approach can cause problems in divorce cases involving both legal systems.

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Spell it out and let them know

When abroad, the death of a friend or colleague brings home to you how much trouble unfinished business can add to sorrow. For lasting peace of mind, dare to take the extra step and review the scenario you’d prefer in the case of your untimely demise: draw up a last will and make things easy for those you love.

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Using DNA to prove a hereditary right

It is possible that when a father has passed away and his estate has already been divided, someone comes forward claiming to be his son or daughter. Apparently, the deceased fathered this child without anyone (possibly not even the deceased himself) knowing about his or her existence.

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When does Dutch law apply to divorce (part 2)?

Part 1 of this series addressed the application of the Dutch Matrimonial Property Law on the division or settlement of property and assets between spouses in international divorce. This is of special interest for expats in divorce. In part 2 we are going to focus on the effect of the law on maintenance.

Does Dutch law apply to maintenance?

The law applicable to maintenance can be different from the law that applies to the Matrimonial Property Regime.

Child maintenance

Based on The Hague Protocol 2007, the law of the usual country of residence of the person entitled to receiving maintenance is applicable for determining child maintenance. If a Dutch judge receives such a request and the children live in the Netherlands,  the Court will determine child maintenance according to Dutch law.

Spousal maintenance

Based on the protocol mentioned above, in the case of spousal maintenance, the law of the usual country of residence of the person entitled to receiving maintenance applies. There is, however, one exception. If the person obliged to pay spousal maintenance contests this law and the marriage has a closer tie to another country, then that law applies.

The protocol primarily considered the last country in which the parties had a common residence. Numerous factors play a role, such as the location where the marriage took place. Other factors are the length of residence of the spouses in the different countries, their nationality, etc. This possibility to exception can lead to lengthy discussions in international divorce. This holds especially for expats that often have a closer tie to the country of their common nationality.

Be well informed when it comes to maintenance payments. The differences between countries are enormous, especially where spousal maintenance is concerned. The length of the maintenance obligation differs, as well as the amount. In Norway, for example, spousal maintenance does not exist.

Contact

If you are an expat living in the Netherlands and you are involved in an international divorce, please do not hesitate to contact us for advice on how to find the best solution.

 

When does Dutch law apply to divorce (part 1)?

If you have moved to the Netherlands, you may be in for some surprises when filing for divorce. For instance, it may turn out that you are married in community of property. Couples often are not aware of this until one of them files for divorce.

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Tax aspects in international divorce

It is important for one to be familiar with the tax aspects of an international divorce when filing for divorce. Thus, it is advisable to seek tax advice during (international) divorce proceedings.

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