Unfortunately, we still see it happen too often: cohabitants who have not arranged anything in terms of inheritance law and unexpectedly face fate. This can lead to distressing situations with major consequences. Did you know that in the Netherlands cohabitants without marriage, registered partnership or cohabitation contract have no legal claim to each other’s assets? Upon death, this can lead to complex and painful situations for the partner left behind.
In this blog, we discuss two examples of such situations and how you can easily avoid them.
Situation 1: Property ownership and inheritance law
The situation:
Two cohabitants, A and B, buy a house together and each owns half. Unfortunately, A dies unexpectedly. Because they are not married, have no registered partnership, nor have they entered into a cohabitation contract, A’s estate is divided according to the law. This means that A’s children each inherit a portion of his property in the home.
As a result, B is suddenly no longer the sole owner of the house. A’s children together receive 50% of the house and B is left with 50%. This means that B cannot decide independently about the home, but is dependent on the cooperation of A’s heirs. This may not only lead to tensions, but may even mean that B is forced to leave or sell the home.
Examples of how to avoid this:
Include a “residence clause” in a cohabitation contract. This means that anything jointly owned will automatically belong to the remaining partner. This often happens without any payment in return. Another solution is to draw up a will in which you appoint your partner as heir or give him a ‘bequest’ of, for example, the house. You can then stipulate that the house goes to the remaining partner.
Situation 2: Inheritance with minor children
The situation (Court of The Hague, Oct. 25, 2023, ECLI:NL:RBDHA:2023:16166):
A and B were cohabitants with one minor child, born before Jan. 1, 2023. The father acknowledged the child but did not receive parental custody. When mother A died, the child inherited her assets under the law.
Because the father does not have parental authority, he cannot accept or settle the estate on behalf of the child. This causes the estate to become “rudderless,” and the father must appeal to the court to still obtain custody. This process is time-consuming, costly and emotionally taxing – especially during a time of mourning.
Examples of how to avoid this:
Before death, arrange for the other parent to have official custody and/or appoint a guardian in your will. This ensures that the other parent or guardian has authority to make decisions about the estate and the welfare of the children.
How to proceed?
Settling inheritance matters may not be a romantic subject, but it is very important. Especially for cohabitants! It prevents legal battles, emotional tension and unnecessary costs. By drafting a cohabitation contract, will or guardianship arrangement, you ensure that your loved ones are protected if the unexpected happens.
Want to know more? Then contact Kimberly Rozema, Kim van der Bijl or one of our other inheritance law specialists and discuss your situation.
- Court of The Hague, October 25, 2023, ECLI:NL:RBDHA:2023:16166
