In the current inheritance law there is a prohibition on concluding agreements for the estates of persons not yet deceased. There are however a number of legal exceptions to this ban, such as the so-called “Valkeniers clause” (which allows spouses to waive their right of inheritance to each other’s estates in the marriage contract if they have children from a previous relationship).The bill aims to relax this prohibition and tries to tackle the concern many parents are faced with when arranging their estates, both for themselves and in consultation with future beneficiaries. The bill does this by introducing the concept of the ‘general inheritance agreement’, which gives parents the opportunity to reach agreements with their children on the allocation and division of their estates. This gives the parents peace of mind and reduces the chance of arguments erupting between the children when their parents die.Aside from this ‘general inheritance agreement’, the bill likewise calls for the introduction of a number of ‘punctual inheritance agreements’, which provide for the opportunity, among other things, to conclude an inheritance agreement on the value of gifted items in respect of gifts that must be brought back into the estate, compulsory heirs relinquishing an abatement claim, or permission by the compulsory heirs for a donee to dispose of goods gifted to him or her.
The compulsory reserve under the law of inheritance
The bill includes another ‘revolutionary’ aspect – an overhaul of the portion of an inheritance that must be reserved for children under the inheritance law. This general reserve for offspring shall be reduced to half of the estate, with the direct consequence that the available part of the estate will also be half. At present the size of the available portion is still dependent on the number of children – if there is one child the available portion is half, if there are two children it is a third and for three or more children the available portion is just one quarter of the estate. So it is primarily the parents of two or more children that will henceforth have more options when it comes to distributing their estates. Bearing in mind specific family situations, the parents can settle their estates more according to their wishes. Of primary concern here are families with step-children, children requiring special care, protection for a partner to whom that person is not married, etc.
The ‘shrinking’ of that reserve set aside for the children is to some extent offset in the bill by means of reduced burden on the reserve as a result of the right of usufruct of the spouse living the longest. While in theory the longest-living spouse retains the right of usufruct to the entire estate, if that person is only entitled to the usufruct to a part of the estate, then it is preferentially charged to the available portion.
The bill further discusses the repeal of the reserve set aside for parents. At present a childless testator whose parents are still alive cannot choose to whom his or her assets will be transferred, because a reserve of one quarter of the estate is set aside for each parent. This reserve would be repealed under the new law and replaced by a claim for maintenance payable out of the childless testator’s estate. A parent can lodge a claim for maintenance if he or she is in need thereof at the time of the child’s death and receive it in the form of an annuity or in capital.
The children – the compulsory heirs – are entitled to a ‘reserve in kind’ at present. Should the reserved portion of the estate for the children be breached because the testator made too many gifts during his or her lifetime, the children can demand that those goods gifted in kind be returned to the estate (= abatement). It comes as no surprise that this situation creates a great deal of uncertainty, especially for the donees of donations that are suddenly required to surrender the goods they received. This is why that reserve in kind is to be converted into a ‘reserve in value’. This means that the compulsory heirs will only be able to demand the countervalue of the donations that have depleted their reserve, but not the gifted goods themselves.
The valuation of the donations for the purpose of calculating the notional total value of an estate (for the purpose of the abatement of donations, where applicable) will, under the bill, henceforth be based on the intrinsic value of the gifts on the day upon which they were donated, indexed until the date of the testator’s death. At present this valuation is conducted on the date of the testator’s death. By valuing donations for the purpose of calculating the notional total value of an estate at the time of the donation, admittedly with indexation, a uniformity is created in respect of valuing donations for the purpose of determining their part of the estate (gifts brought in – see below).
Gifts brought in
The mechanism for gifts received before the testator’s death that are considered as part of the estate (gifts brought in) is likewise the subject of a comprehensive overhaul. Gifts brought in are gifts (or their countervalue) that a legal heir received while the testator was alive or through a testament and that are brought back into the estate as a whole at the time of the testator’s death. By doing so, the items brought in are divided between all beneficiaries, guaranteeing their equality. This is because it is presumed that the gifts to the legal heir were made by the testator as an advance payment on their share in the estate, as it were. In other words, the testator was merely of the intention of awarding an advance to the donee of what he or she would receive at the time of the liquidation and distribution of the estate. That is why the donee returns this gift – or its countervalue – to the estate, after which it shall be divided up among the heirs.
At present this bringing in of gifts is performed according to whether moveable or immoveable assets are involved. As a rule, immoveable assets are brought in in kind and according to their value on the date the estate is distributed, while moveable goods are dealt with by means of a reduced share (in terms of value) and according to the value at the time of being donated. In practice, this distinction means that many unreasonable and unfair situations are created. The bill deals with this by determining that all items, whether moveable or immoveable, shall be brought in in the same manner – in terms of their value, irrespective of their nature, and on the basis of the intrinsic value of the gifted items on the date they are donated, indexed until the date of the testator’s death. Both the abatement and the bringing in of donations will henceforth be performed in a uniform manner.
Finally, the bill also provides for a clearer arrangement for apportioning debts. The Civil Code presently only dictates the principle for bringing in debts, but says nothing of the methods. This is why a new article 821 of the Civil Code has been proposed, which includes a new arrangement for apportioning debts.