Hof Van Cassatie Bevestigt Sterfhuisclausule (Belgian Supreme Court Confirms Civil and Fiscal Validity of Distribution Clause of Community Property towards One Specific Spouse)
Alain Laurent P. G. Verbeke
University of Leuven, Director Rector Roger Dillemans Family Property Law Institute, Codirector Institute for Contract Law, Codirector Leuven Center for Notary Law; Harvard Law School; University of Leuven, Faculty of Psychology; Antwerp Management School; Tilburg Law School Department of Private Law and TISCO; Catholic University of Portugal (UCP) - Católica Global School of Law; Greenille Attorneys
February 28, 2011
Rechtskundig Weekblad, No. 34, pp. 1438-1443, 2011
In this article we comment on the Belgian Cour de Cassation decision of 10 December 2010. The Supreme Court approves the legal and fiscal validity of a clause in marital contracts of community property whereby the entire community is awarded towards one spouse nominatim. This clause is used in extreme situations where one of the spouses is terminally ill. Because there is no condition of survival in the chef of the beneficiary spouse, the fictitious legacy of article 5 Succ. Code may not be applied and the benefit remains untaxable.
Legally, the benefit is qualified as a marital advantage and not as a gift. However, to protect the forced heirship rules, a portion of the benefit may be added to the mass for forced heirship. This is the portion that exceeds the cap, called the surplus.
The cap, in case of common children, is up to all marital gains and half of assets that were private to the deceased spouse and that he has brought into the community. These are immune to the forced heirship rules, being full marital advantage. The other half of assets that were brought into community, are the surplus. These are only quasi marital advantage and are not immune for forced heirship rules.
The Supreme Court now has decided in a landmark decision that the clause is indeed from a civil law perspective a marital advantage and not a donation and that the surplus is not taxable either.
Note: Downloadable document is in Dutch.
Number of Pages in PDF File: 6
Keywords: Marital contract, Community Property, Marital Advantage, Inheritance Tax
JEL Classification: K11, K12Accepted Paper Series
Date posted: April 30, 2011
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