Must married couples with children still make a will or is everything for them already arranged in the law?

10 July 2019

Also for married couples (or registered partners) with children it can, despite the existence of legal arrangements, be wise to make a will.
When one of the spouses within a marriage dies and is leaving the other spouse as longest living, together with one or more children, the legal distribution applies. The Legal Division also applies if there is a registered partnership. The Legal Division is a scheme that is included in the law. So it is a built-in ‘ basic service ‘ by the legislator. This scheme is automatically applied if the testator is married at the time of death, has at least one child of their own and no last will. To make a last will at life, it is possible to differ from or customize the system.
This blog is an edition of “Goed Geregeld”, a product of FBN Juristen.

The legislation
By the Legal Division the surviving partner will get all belongings from the legacy. The surviving partner is automatically owner of this property and may do with it whatever he wants. On the other hand, the surviving partner also has to pay all debts from the estate of the deceased. The children are also heirs, but they get no goods by the functioning of the legal distribution from the estate. Their inheritance consists of a monetary claim on the surviving parent. This means that the children have a right to the payment of a certain sum of money by the surviving partner, that corresponds to their inheritance. They are so creditors. For example, suppose A and B are married and have two children (C and D). (A) dies. The inheritance of the children is than 1/3 because B, C and D all three get a third of the estate. The kids get so 1/3 a money amount of the value of the estate. This amount of money they can only claim in principle if the surviving partner dies. In this way, the surviving partner can live his life undisturbed. He needs to pay nothing to the children during life. Any inheritance tax due on the progress of the children, will have to be payed by the surviving partner to the tax authority. The following are some examples to clarify in which situations the legal allocation applies. In the examples, the deceased had no last will.

Example 1: A and B are married. B has two children from a previous marriage. (A) dies. In that case there is no question of legal distribution, because at the time of death of A there aren’t any children of deceased A.
Example 2: A and B are married. A and B have a child, C. Child C is disinherited. C does have a grandchild, D. (A) dies. In that case, however, the Legal Division does apply, because according to the law, grandchild D then comes instead of child C and can thereby be seen as an ‘own child’ .
Example 3: A and B are unmarried cohabitants and have two children, (C) and (D). (A) dies. In that case, the legal distribution does not apply, because A and B are not married or have entered into a registered partnership with one another.

Differ from the Legal Division
The Legal division is, as mentioned, a legal arrangement, which automatically applies upon the death of a married person, who leaves a partner and child (ren) as heirs. When the legal distribution is not desired, you will have to draw up a last will. In the last will the legal distribution can then be declared inapplicable. What happens then? The surviving partner and the children together will have to determine the division of goods, unless otherwise provided in the last will. Also, when the legal distribution is desired, it may still be wise to draw up a last will. First, in a last will it is possible to customize the Legal Division. For example, by naming an executor. In addition, in a will on some key points can be differed from the Legal Division. Why should married couples want to deviate from the legal division? This could have several reasons, for example:

  • The monetary claims of the children – which, on the basis of the law in principle are payable only upon the death of the last surviving partner – can in a last will also be made due and payable for example, when the surviving partner remarries or is included in a healthcare facility/nursing home;
  • The desire to – in addition to its own children – also include one or more stepchildren in the Legal Division. In a last will it is possible to name a stepchild as heir, and in addition involve this stepchild into the Legal Division. A legal distribution with only stepchildren (without own children) is not possible;
  • Due to an inheritance tax saving – with a view to the death of the last surviving partner (also called “the second death”) – it may be desirable to in a will to depart from the statutory interest rate scheme in respect of the claims of the children.

For married couples (or registered partners) with children it can, despite the existence of legal distribution as basic provision in the law, be wise to make a last will. Let yourself advice you by your notary.

“Goed Geregeld” is a product of FBN Juristen. “Goed geregeld” proposes two times a month a topic on which the notary regularly get questions from clients. To the content of this article is spent the utmost care, but by the limited size it is impossible to point out all facets and consequences of exposing a subject: this is an article on main lines. For information about your specific situation: ask your notary!