4 April 2019
The new inheritance law could lead to family disputes
We won’t inherit like before. The inheritance law has changed, and the rights of surviving partners have changed as well. But how exactly?
In a breakfast session held by national daily newspaper La Libre Belgique and the MoneyStore blog, Frédéric Lalière, Brussels Barrister and head of Lectures at the ULB (Université Libre de Bruxelles) and Colette Téchy, Legal Adviser Wealth Analysis and Planning with ING Private Banking, presented the very specific consequences of the new inheritance law.
Usufruct maintainedThe surviving partner has the certainty of being able to occupy the family home.
At first glance, this law has changed the rights of the surviving partner. However he or she remains protected in many respects. “Since the coming into force of this new law we have had to reassure surviving partners. You have to realise that death dissolves the matrimonial regime. However, it is this matrimonial regime that defines which assets will form part of the estate for the surviving partner,” Colette Téchy explains. In the succession, the surviving partner has the right to the usufruct of the deceased partner’s estate with a minimum usufruct of 50% of these assets. He or she is also automatically entitled to the usufruct of the family home and household goods. This usufruct can be converted into a capital sum, but beware… the older the partner, the less the value of this usufruct and therefore the less the capital received on conversion. Note that conversion can never be demanded by the children on the family home. The surviving partner therefore has the certainty of being able to occupy (or rent out) the family home.
And what will happen in “recomposed” families?
“In a recomposed family, the rights of the surviving partner are identical. This right to usufruct of the family home is there even if there are children from a previous marriage. However, now, partners may, by marriage contract, renounce all their forced inheritance rights if there are children from a previous marriage. But this requires the prior agreement of both partners,” Frédéric Lalière explains. In recomposed families, both the children of a former union and the surviving partner may require the usufruct to be converted into a capital sum. However this possibility of conversion does not apply to the family home.
Agreements as to future successionsNow you can dispose freely of 50% of your estate. This means that one or more children may be favoured in the distribution.
And what about the children? With the new law, forced inheritance has been changed. “Now you can dispose freely of 50% of your estate. This means that one or more children may be favoured in the distribution without breaching the forced inheritance law. If the donations took place before death, the heirs can nonetheless bring actions to have them reduced,” adds Frédéric Lalière.
When the donations were made subject to a usufruct, attention must be paid to the fact that this usufruct is continued, in other words the surviving partner can still benefit from this usufruct. One big change in the new inheritance law is the possibility of making agreements as to future successions. What does that mean? It refers to ad hoc or overall agreements that presuppose that all members of a family (father and/or mother and direct heirs) come to an agreement before the death of the ascendants on the distribution of the assets in the event of a succession.
In this way a grandfather, for example, may decide to have his grandchildren inherit with the agreement of the parents not to include these assets in the succession. “With a global agreement, one can thus stipulate that all the donations and benefits are made by virtue of the agreement and considered as acquired, without having to carry them into the estate. These agreements favour harmonious family relations upon a death. But be careful, all the family members have to agree on the terms of the agreement,’ Frédéric Lalière warns. So the new inheritance law has been adapted to certain family realities of our times. In certain cases, it favours harmonious family relations, but in others unfortunately it could be a source of conflict.