DIVORCE, DEATH AND INHERITANCE IN NL

It is natural to believe that if you divorce your husband or wife you will automatically have cut all ties with them. In the Netherlands this is not necessarily the case. If you have kids with your ex-spouse their inheritance needs to be protected. There are various ways in which your ex can gain access to your estate, in the unfortunate and unlikely event that you pass away. If you want to ensure that only your offspring receive your worldly possessions, read on. We will cover the pre-emptive steps you can take on this page.

To better illustrate the procedure, we will use a case study as an example. Meet Maria and John:

• Maria is Italian and she married her Canadian husband John, in Italy
• Maria and John lived in Italy for three years, following their marriage
• Afterwards, they moved to the Netherlands
• For the past six years, they have been living in NL
• They have two children, aged 5 and 7
• Both John and Maria work for a large international company and are fully-integrated into the expat community in Holland
• Sadly, however, their marriage has hit a rough spot
• Maria and John have decided to get a divorce

As expats living in the Netherlands, how will this play out for them?

Check out our page on ‘Divorce in the Netherlands‘ for further information on the legal side of securing a divorce Holland.   

As an expat who wishes to divorce their spouse in the Netherlands:

• You will have a hotchpotch of rules, treaties and regulations to contend with
• You will require the help of a lawyer
• In order to provide sufficient guidance, this lawyer must specialize in international divorce

Dutch Divorce Regulations

• European regulations will determine which national courts are competent to deal with your divorce
• In principle, the court of yours and your spouse’s ‘usual place of residence‘ will take on the case
• If you and your spouse are of the same nationality, this will largely determine which country issues the divorce
• The judge must decide which divorce law will be applied to your marriage
• The Judge must also rule on which matrimonial property law yours and your spouse’s shared possessions should be divided against
• Partner and child alimony arrangements must also be settled upon
• A solid parenting plan will have to be drawn up regarding the care of, and interaction with, the children

What did Maria and John do?

• They hired themselves an international divorce lawyer, to help guide them through the process
• Because they had both fully integrated into the Netherlands, the Dutch courts were made responsible for their divorce

Prepare for your Passing

There is a very important matter for divorcing expat parents to consider. Under the stress of divorce proceedings it is often neglected:

• Should one spouse pass away in the middle of the divorce case, what would happen?
• It is easy to forget to make arrangements for such an eventuality
• Many people simply assume that said event would never happen to them
• However, it is crucial that you plan for this occurrence
• It may seem unrealistic, but jeopardizing your children’s inheritance is not worth the risk

Inheritance Law in NL

What will happen if Maria and John do not make provisions for their deaths?

• European Inheritance Law states that the law of your last country of residence applies to your estate, if you die without having made a will
• Since Maria and John live in the Netherlands, Dutch inheritance law will be implemented if one or both of them passes away
• According to Dutch inheritance law, your ‘future ex-partner’ is still your legal heir
• So, if Maria or John died during their divorce proceedings, their marriage would not have been formally terminated
• This means that the living future-ex partner will inherit the deceased’s worldly possessions
• Unsurprisingly, many divorcing couples do not like this idea at all!
• To Maria, it is unacceptable
• She does not want John to inherit any of her possessions if she passes away
• Luckily, it is possible for her to draw up a will which disinherits him, and leaves all her possessions to her children

The Rights of the Disinherited Spouse in NL

If Maria chooses to go ahead with making a new will and disinheriting John, there is not a lot he can do to stop her. However, he does have some rights. He can exercise these if Maria passes away before their marriage has officially ended. John has the right to:

• Continue living in the marital home for a period of six months
• Usufruct the home and the household contents that are part of Maria’s estate
• Usufruct all Maria’s other possessions, if John can demonstrate that he needs them for his own personal care

John can only invoke the rights of usufruct if the divorce proceedings have been under way for less than one year at the time of Maria’s death.

It goes without saying that John, of course, can also draw up a testament, in which he disinherits Maria. They can arrange this independently of each other, with the aid of a civil law notary.

Disinheriting a spouse does not totally eliminate the possibility that they will have influence over your estate, should you pass away. You will have to take further precautions if you have chosen to make your children the soul heirs to your worldly possessions, and they are underage.

Here is what would happen to Maria and John:

• Let’s say Maria goes ahead and makes her two underage offspring her legal heirs
• What they inherit will have to be administered by their legal representative, until they are of age
• Their legal representative would automatically be John

What can Maria do to remedy this?

• Maria can appoint someone else to be her children’s legal representative. She could choose a close relative, like her sister, for example 
• This will take John out of the picture completely
• Maria can make sure that her chosen representative keeps their legal power until her children reach an age of her choosing
• As their father John will, of course, retain parental authority over the children as long as they are underage
• He will, however, have no official control over their inheritance

If a Child Passes Away

What happens to Maria’s assets in the unfortunate event that, after her own death, one of her children passes away?

• It depends on whether said child has any children of their own
• If they do not, then everything that he or she has inherited from Maria will be inherited by his/her legal heirs
• Unless Maria has stipulated otherwise, her child’s legal heirs will be Maria’s other child and their father John
• Maria can take measures to prevent this from happening as well
• She must state, in her will, that the remaining amount of her estate should go to her surviving child in the event that her other child passes away
• This clause is a form of ‘ruling from the grave’
• In the case of divorce, however, it is necessary to take these precautions

The bottom line is: if you are going through a divorce in the Netherlands, make sure you plan for every eventuality. Here is a summary of the steps we have shown you on this page:

1. Draw up a testament in which you disinherit your soon-to-be ex-spouse
2. If you have children, and you want them to inherit your possessions, make them your legal heirs
3. If they are underage, arrange for someone else to administer their assets to them
4. Include a clause in your will that prevents your ex-spouse from inheriting what remains of your assets through your children

For further advice on how you, as a divorced expat parent, can help your kids through this challenging time take a look at our page: Expat Beak-ups: What about the Kids?