Main rules and principles of Dutch inheritance and succession law
as established in Book 4 of the Dutch Civil Code (Boek 4 BW), effective since January 2003; Common Property Law (Vermogensrecht) and Inheritance Tax law (Successierecht).
Introduction
Historically, unification in the field of Succession law was mostly restricted to private international law. This is quite understandable for a difficult, technical and particularistic field, where a mixture of Roman, customary and common law led to very diverse regulations. The particular impact of succession law and especially international succession law was rather small. Earnings were modest. Real wealth was for the happy few. Property in foreign countries was seldom owned. Times have changed. Succession law has grown in importance. In the next few decades the transmission of wealth through inheritance will be very important throughout Europe. Small estates have increased, in addition to those of large and medium size.
The 1st January 2003 saw the introduction of a new inheritance law in the Netherlands. Rules will be unfamiliar to citizens of countries with a legal system based on common law. With this guide to the main rules and fundamental principles of Dutch inheritance legislation, the platform ‘Erfrecht voor iedereen (Inheritance law for everyone) hopes that this explanation offers a first step guide to the large number of non-Dutch speaking persons in and outside the Netherlands whose life is affected by inheritance law.
This modern law aims for clarity and practicality. The praxis of civil law notaries and estate planning professionals, however, designing instruments to reach tax-reduction and gaining power over the settlement of an inheritance, is strongly influencing the way people think and act in the field of inheritance law. This causes confusion and misunderstandings.
A translation in English has been made available for the public (Open Access) through a university project in the Netherlands:
INHERITANCE LAW LEGISLATION OF THE NETHERLANDS (pdf)
A translation of Book 4 of the Dutch Civil Code, procedural provisions and private international law legislation
1. Core Principle of Dutch Inheritance Law: the Immediate Legal Transfer of the Estate
The immediate legal transfer of the inheritance is a key characteristic of continental law systems, known as the principle of saisine (or de saisine regel in Dutch).
The Rule: From the moment of death, the heirs “step into the shoes” of the deceased. The entire estate—all assets, rights, possession, and debts—transfers automatically and immediately to the joint heirs.
The Legal Concept: This avoids a legal vacuum. There are no “probate proceedings” or a mandatory court-appointed executor that first needs to be established to hold the estate (as in common law systems). The heirs become the immediate owners and are jointly responsible for administering the estate until it is fully settled and divided.
Exception for Statutory Distribution: When the wettelijke verdeling (statutory distribution for spouse and children) applies, the saisine principle is modified: the surviving spouse automatically becomes the sole owner of the estate’s assets and the sole person responsible for the debts in their relationship with third-party creditors, while the children only receive a monetary claim.
2. Two Ways to Inherit: by law (intestate succession) if there is no will, or by will (testamentary succession) if one has been made
The first question you will need to answer in the case of an inheritance, is whether the decedent has left a will regarding his or her estate. If so, the contents of the will, along with various statutory provisions of inheritance law, will determine how the estate is to be settled. Most wills determine who the heirs are, whether someone should receive a bequest, whether an executor has been appointed etc. In the case of the absence of a will, the law determines who the heirs are and for what part. Dutch inheritance law does not give specific instructions for the settlement and division of an estate. The power to act here has been put in the hands of the heirs. General rules are given in Book 3, Property Law.
3. Statutory Succession: What Happens Without a Will
3.1 The Primacy of Family by Blood Relation (Intestate Succession)
If a person dies without a valid will, the law determines who the heirs are based on a system of four groups (parentele stelsel)
The traditional concept of ‘family’ as defined by blood ties is fundamental to the statutory inheritance system when there is no will.
- The Rule: The law calls only blood relatives (and spouses/registered partners) to inherit. Unmarried cohabiting partners or close friends, no matter how close, do not inherit by law; they must be included in a will.
- The Legal Concept: The system operates strictly on degrees of kinship within the four groups of heirs (parents, grandparents, great-grandparents). This ensures a clear, objective system for determining who inherits when the deceased has not made a specific choice.
- Representation (Plaatsvervulling): This principle reinforces the family structure. If an heir (e.g., a child) has died before the deceased, their children (the grandchildren) step into their place (by representation) to inherit their share, ensuring the lineage within the bloodline continues to benefit.
3.2 Four Groups of Heirs
Only if there are no relatives in a preceding group do those in the next group inherit:
- Spouse/Registered Partner and Children: This is the primary group. In this situation often special rule applies: statutory distribution (wettelijke verdeling).
- Parents, Brothers, and Sisters: If no one from Group 1 is alive.
- Grandparents: If no one from Groups 1 or 2 is alive.
- Great-grandparents: If no one from the above groups is alive.
If there are no blood relatives up to the fourth group (sixth degree of kinship), the inheritance goes to the Dutch State.
3.3 Key Concept when deceased leaves a spouse and children: The Statutory Distribution (wettelijke verdeling)
For the first group (spouse/partner and children), the 2003 law introduced a crucial concept: the statutory distribution (wettelijke verdeling). This rule is not known in any other jurisdiction.
- Rule: The surviving spouse/partner automatically inherits all the assets and debts of the deceased.
- Children’s Position: The children do not receive their inheritance immediately. Instead, they receive a monetary claim on the surviving spouse/partner equal to the value of their share.
- Purpose: This rule is designed to ensure the surviving partner can continue living in the marital home and maintain their standard of living without being forced to sell assets to pay out the children’s inheritance immediately.
- When the Children Receive Payment: The children’s monetary claim only becomes due and payable when the surviving spouse/partner dies, goes bankrupt, or enters debt restructuring. This prevents the ‘cold exclusion’ of the surviving spouse often seen in older laws and wills. The spouse is allowed to use the whole inheritance for the costs of living. The children only are entitled to what is left.
4. Testamentary Succession: The Power of a Will — And it’s Limitations
Dutch law allows you to create a will to override the statutory rules. This is called testamentary freedom.
- Formal Requirement: A will must be drawn up as a formal deed by a Dutch civil law notary to be valid. A handwritten or oral will is not legally binding in the Netherlands.
- Contents: In a will, you can appoint different heirs, exclude family members (within limits), or make specific bequests (legaten) of certain items or sums of money.
4.1 Boundaries — Main Principle Rule for Succession: the Saisine
In the Netherlands, the law arranges the transition of property from the deceased tot the heirs. This is a main difference with common-law. By the power of law, all property rights and duties move from the deceased to the heirs upon the moment of dying. It is not possible to change this by will.
4.2 Boundaries – Closed System of Testamentary Dispositions (gesloten stelsel van uiterste wilsbeschikkingen)
The principle: “law goes over testamentary clauses” captures the fundamental principle of the closed system of testamentary dispositions (gesloten stelsel van uiterste wilsbeschikkingen) under Dutch Inheritance and Succession law since 2003.
- The Rule: A person can only include specific types of clauses in a will that are explicitly regulated or recognized by Book 4 of the Dutch Civil Code or in another Dutch law. You cannot invent new types of inheritance clauses or conditions that are not defined by law.
- The Legal Concept: This ensures legal certainty and predictability. It prevents unusual, complex, or legally unenforceable conditions from creating disputes or uncertainty after death. Every disposition must fit within a predefined legal category, such as:
- Appointing heirs (erfstelling).
- Making a bequest (legaat).
- Appointing an executor (continental law executeur).
- Setting up a testamentary foundation (stichting).
While you have the freedom to decide who inherits (testamentary freedom), the way you arrange the inheritance must follow the structures provided by the law. This confirms your understanding that the legal framework sets rigid boundaries for how a will can be structured.
4.3 A Limitation: The Forced Share or Statutory Share (legitieme portie)
Despite the freedom to make a will, Dutch law protects certain close relatives through the concept of the forced share (legitieme portie). The law states that children, even if they have been disinherited, are nevertheless entitled to a portion of their parents’ estate. This entitlement is referred to as the ‘statutory portion’ (under the old law: the ‘child’s portion’). A person who claims a statutory portion is referred to as the one entitled to the legitimate portion, the legitimaris.
If you decide to exercise your rights to a statutory portion, you would be entitled to a specific part of the value based on which the statutory portions are calculated. This value is referred to as the ‘forced heir share’. Before being able to calculate the statutory portion, one would first have to determine the fraction or portion of the estate the heir is entitled to. The next step is to determine the ‘forced heir share’.
- Who is Entitled? Only the children (and their descendants if they have died) of the deceased are entitled to this protection. Spouses or other relatives are not automatically entitled to a forced share if disinherited.
- The Claim: The forced share is a purely monetary claim (not a claim to specific assets).
- The Amount: It amounts to half of what the child would have received under the statutory rules if no will had existed.
- Time Limit: A child must explicitly make this claim within five years of the death of the parent, otherwise the right expires.
- If an heir decides to reject the inheritance, there are special rules to claim the statutory share, with a short time limit to submit the claim. Ask for specialised legal advice!
5. No specific Rules for Digital Assets (yet)
6. Accepting or Rejecting an Inheritance
When you are an heir, you’re not obliged to accept the inheritance. You have three options, two of them must be registered with the District Court (Griffie van de rechtbank):
- Pure Acceptance (Zuivere aanvaarding): You accept all assets and all debts without limitation. If the debts are higher than the assets, you are personally liable for the difference with your private money.
- Acceptance under the Benefit of Inventory (Beneficiaire aanvaarding): This is a safer option. The estate is first liquidated (debts are paid from assets). You only receive any remaining surplus. If debts exceed assets, you are not personally liable for the shortfall.
- Rejection (Verwerping): You renounce all rights and obligations related to the inheritance. You receive nothing, but you are also not responsible for any debts. This decision is irreversible.
7. Tax is due over the Receipt of an Estate – Succession Tax
8. Arrangement of the funeral
Dutch Inheritance Law does not give rules for the funeral. This is arranged in the Wet op de Lijkbezorging. The fundamental rule is that the funeral should be arranged according to the whishes, or to the presumed whishes of the deceased. The heirs do not play the leading role, but the ‘nabestaanden‘. This is a broader circle than the heirs, consisting of spouse or partner, children (also form other relationships, relatives, close friends, close colleagues and even neighbours.
Editor’s note. This article is in the building phase. It will be enhanced and improved.