The Netherlands has a different statutory matrimonial property regime than Germany. For marriages contracted before January 1, 2018, community property applied. For marriages contracted after this date, community of acquired property applies. This means that assets acquired during the marriage become joint property. Therefore, in the event of death, the matrimonial property regime must be dissolved beforehand. The deceased can only dispose of the portion of the assets that does not first accrue to the spouse; only the deceased's share constitutes the estate.
The surviving spouse receives sole ownership of the estate. The children retain only a claim to a payment equal to their respective shares of the inheritance (Article 4:13, paragraphs 2 and 3 of the Dutch Civil Code). This claim is deferred until the death of the surviving spouse to prevent the estate from having to be liquidated. However, the surviving spouse can waive this preferential treatment. In this case, they and the children have equal rights. Furthermore, they can voluntarily pay out the children their shares. Testators in the Netherlands can expand their children's inheritance rights through a will.
In specific situations, children are entitled to the transfer of inherited assets. This is the case, for example, if the surviving spouse expresses their intention to remarry. In this case, they retain a right of use to the estate, up to the value of their statutory share of the inheritance (Art. 4:19 BW). For any questions, please contact Dr. Michael Gottschalk, your specialist lawyer for inheritance law in Düsseldorf and Krefeld.