Estate Planning Journal, pp. 106-111, 2011
9 Pages Posted: 10 Mar 2011 Last revised: 30 Apr 2011
Date Written: January 30, 2011
In this article we briefly 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 that the clause is indeed a marital advantage and not a donation, and that this surplus is not taxable either.
For a more in depth analysis, see our article in RW 2010-2011, p. 1438-1443.
Notes: Downloadable document is in Dutch.
Keywords: K11, K12
JEL Classification: Community property, marital contract, inheritance taxes
Suggested Citation: Suggested Citation
Verbeke, Alain Laurent P. G. and Barbaix, Renate, Distribution Clause of Community Property towards One Specific Spouse Approved by the Supreme Court (Cour De Cassation) in Belgium (De Sterfhuisclausule Springlevend) (Dutch) (January 30, 2011). Estate Planning Journal, pp. 106-111, 2011. Available at SSRN: https://ssrn.com/abstract=1782419