Hof Van Cassatie Bevestigt Sterfhuisclausule (Belgian Supreme Court Confirms Civil and Fiscal Validity of Distribution Clause of Community Property towards One Specific Spouse)

Rechtskundig Weekblad, No. 34, pp. 1438-1443, 2011

6 Pages Posted: 30 Apr 2011

See all articles by Alain Laurent Verbeke

Alain Laurent Verbeke

KU Leuven - Faculty of Law; Harvard Law School; KU Leuven - Faculty of Psychology; Tilburg Law School; Catholic University of Portugal (UCP) - Católica Global School of Law; Greenille Private Client Team @ Deloitte Legal - Lawyers

Renate Barbaix

Independent

Date Written: February 28, 2011

Abstract

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.

Keywords: Marital contract, Community Property, Marital Advantage, Inheritance Tax

JEL Classification: K11, K12

Suggested Citation

Verbeke, Alain Laurent P. G. and Barbaix, Renate, Hof Van Cassatie Bevestigt Sterfhuisclausule (Belgian Supreme Court Confirms Civil and Fiscal Validity of Distribution Clause of Community Property towards One Specific Spouse) (February 28, 2011). Rechtskundig Weekblad, No. 34, pp. 1438-1443, 2011. Available at SSRN: https://ssrn.com/abstract=1825148

Alain Laurent P. G. Verbeke (Contact Author)

KU Leuven - Faculty of Law ( email )

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Renate Barbaix

Independent

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