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Distribution Clause of Community Property towards One Specific Spouse Approved by the Supreme Court (Cour De Cassation) in Belgium (De Sterfhuisclausule Springlevend) (Dutch)

Estate Planning Journal, pp. 106-111, 2011

9 Pages Posted: 10 Mar 2011 Last revised: 30 Apr 2011

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; Tilburg Law School Department of Private Law and TISCO; Catholic University of Portugal (UCP) - Católica Global School of Law; Greenille by Laga

Renate Barbaix

Independent

Date Written: January 30, 2011

Abstract

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

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

Alain Laurent P. G. Verbeke (Contact Author)

University of Leuven, Director Rector Roger Dillemans Family Property Law Institute, Codirector Institute for Contract Law, Codirector Leuven Center for Notary Law ( email )

Tiensestraat 41
Leuven, 3000
Belgium
003216325203 (Phone)
003216325296 (Fax)

HOME PAGE: http://www.law.kuleuven.be/fvr

Harvard Law School ( email )

Cambridge, MA
United States

HOME PAGE: http://www.pon.harvard.edu/

University of Leuven, Faculty of Psychology

Oude Markt 13
Leuven, Vlaams-Brabant 3000
Belgium

HOME PAGE: http://ppw.kuleuven.be/english/wopp/leuven-center-for-collaborative-management

Tilburg Law School Department of Private Law and TISCO ( email )

Tilburg, 5000 LE
Netherlands

HOME PAGE: http://www.tilburguniversity.edu/research/institutes-and-research-groups/tisco/

Catholic University of Portugal (UCP) - Católica Global School of Law

Lisboa
Portugal

HOME PAGE: http://www.fd.lisboa.ucp.pt/site/custom/template/ucptplfac.asp?sspageID=3293&lang=2

Greenille by Laga ( email )

Boulevard de la Woluwe 2
1150 Brussels
Belgium
003227380650 (Phone)
003227380660 (Fax)

HOME PAGE: http://www.greenille.eu

Renate Barbaix

Independent

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