Inheritance law in the Netherlands: the statutory division and the legitimate portion

Someone close to you has died in the Netherlands, or you are planning your own estate here. You need to know who is entitled to what, and what to do before a deadline passes. Dutch succession law sits in Book 4 of the Civil Code (Burgerlijk Wetboek, BW). It gives a surviving spouse a strong position, gives children a minimum entitlement no will can remove, and attaches short time limits to those rights.

It may apply to you even if you are not Dutch: across most of the EU the governing law turns on the deceased’s habitual residence at death, not nationality. The international rules are at the end.

Who inherits when there is no will: the statutory division

Without a will, Book 4 BW calls the heirs in groups: first the spouse or registered partner together with the children; failing those, parents and siblings; then grandparents. A registered partnership is equated with marriage (art. 4:8 BW), but an unmarried cohabiting partner inherits nothing on intestacy, however long the relationship lasted and whatever a cohabitation agreement says. Cohabitants who want to provide for each other must make wills.

How art. 4:13 BW works

Where the deceased leaves a spouse or registered partner and children, the wettelijke verdeling — statutory division — applies automatically under art. 4:13 BW:

• The surviving spouse acquires all the estate’s assets by operation of law — no deed, no division, no cooperation from the children.
• The spouse becomes liable for all the estate’s debts (art. 4:14 BW); as between spouse and children they are the spouse’s alone.
• Each child is an heir, but receives a monetary claim against the surviving spouse equal to the value of its share. The child does not become a co-owner of the house, the accounts or the business.

The surviving spouse can therefore stay in the family home and run the business without anyone’s consent. The children’s claims are in principle not payable during the spouse’s lifetime; they generally fall due on the spouse’s death, bankruptcy or admission to statutory debt restructuring, and a will may add triggers such as remarriage. Interest runs on the claim under art. 4:13 BW at the statutory rate of interest less six percentage points, so nothing accrues while the statutory rate stays below 6 per cent, unless the will sets a different rate — a point that matters over a long widowhood.

Undoing the statutory division

The statutory division is not compulsory. Under art. 4:18 BW the surviving spouse may set it aside within three months of the death, by notarial deed registered in the estates register (boedelregister). The effect is retroactive: the estate is then divided under the ordinary rules, with spouse and children as co-owners. The deed must be registered within those three months. Separately, art. 4:19, art. 4:20, art. 4:21 and art. 4:22 BW give children wilsrechten — the right to demand assets up to the value of their claim, usually subject to a usufruct — chiefly where the surviving parent remarries, which keeps family assets out of a new spouse’s branch.

What a will can and cannot change

A Dutch will must be made by notarial deed, or by a private document deposited with a civil-law notary (art. 4:94 BW). There is no valid purely handwritten will; the narrow exception is the codicil under art. 4:97 BW, which can dispose of clothing, jewellery, household effects and books, but not money, property or the identity of the heirs. Every notarial will is recorded in the Central Register of Wills (Centraal Testamentenregister), which records that a will exists and where, not its contents.

Testamentary freedom is otherwise wide. A will can appoint heirs freely and disinherit anyone; set aside the statutory division or change when the children’s claims fall due; appoint an executor and an administrator (bewindvoerder); make conditional legacies; include an exclusion clause (uitsluitingsclausule) keeping an inheritance outside a child’s divorce settlement; and make a choice of law.

What a will cannot do is defeat the entitlements the law reserves: it cannot remove a child’s legitimate portion, nor the statutory rights below. A disinheritance is genuinely effective — the child is not an heir and receives nothing automatically — but it does not make that child go away.

The legitimate portion of a disinherited child

Who can claim it, and how much

Under art. 4:63 BW the legitimarissen are the descendants called to the estate by law: the children, and grandchildren only where they step into the place of a parent who predeceased the testator. A spouse has no legitimate portion, and neither do parents, siblings or unmarried partners.

Art. 4:64 BW fixes it at half of what the child would have received on intestacy. With a surviving spouse and two children, each would take one third on intestacy, so each child’s legitimate portion is one sixth of the calculation base.

That base — the legitimaire massa — is not simply what was left in the bank. Under art. 4:65 BW it is the estate’s value at death, increased by certain lifetime gifts and reduced by defined debts. The gifts added back are listed in art. 4:67 BW: broadly, gifts within five years before death, gifts to descendants whenever made, revocable gifts, and gifts intended to prejudice those entitled. What the child already received is set against the entitlement (art. 4:70 and art. 4:71 BW). A testator cannot, therefore, defeat the portion by giving everything away shortly before death.

It is a claim for money, not for the house

Clients from systems where forced heirship gives a share in the assets often misread this. The Dutch legitimate portion is a claim in money against the heirs (art. 4:63 BW), enforced where necessary by abatement of dispositions and gifts under art. 4:79 and art. 4:80 BW. A disinherited child cannot demand the family home or a share in the company, block a sale, or vote in the administration. Nor does the entitlement arise by itself: the child must actively invoke it.

When it can be collected — and the five-year deadline

Invoking the entitlement and being paid are different things. As a rule the claim is not enforceable until six months after the death, and wills commonly postpone enforceability until the surviving spouse has died (art. 4:81 and art. 4:82 BW). A child may be entitled in principle but wait years in practice.

The deadline for invoking is unforgiving. Under art. 4:85 BW the right lapses if not invoked within a reasonable period set by an interested party, and in any event within five years of the death. If an heir or executor writes setting a reasonable period, that shorter period governs and can expire well before five years. A separate three-month declaration applies under art. 4:72 and art. 4:73 BW where the child has been left something and must choose between taking it and claiming the portion.

Getting the information to calculate it

A disinherited child has no automatic access to the estate’s papers. Art. 4:78 BW closes that gap: a legitimaris who is not an heir can require the heirs and the executor to provide all information needed to calculate the entitlement, and can ask the sub-district court to have the inventory confirmed under oath. In a judgment of 21 February 2024 the District Court of Amsterdam (ECLI:NL:RBAMS:2024:1063) held on that basis that the heir had to hand over bank statements, tax returns and records of gifts. Where information is withheld, a court order with a penalty payment is usual.

Other statutory entitlements

Book 4 BW contains further protective rights, the andere wettelijke rechten, which a will cannot exclude. They matter most where a spouse is left badly provided for, and each carries a short deadline.

These are deadlines for making the claim. Where the entitlement has to be enforced, the application goes to the kantonrechter: within six months of the death for the usufruct of the home and its contents under art. 4:29 BW, within a year for the wider usufruct under art. 4:30 BW, and within nine months for the sum of money for a child’s maintenance under art. 4:35 BW and the sum of money for work performed under art. 4:36 BW.

Accepting, accepting under benefit of inventory, or renouncing

An heir has three options:

• Pure acceptance (zuivere aanvaarding): the heir accepts outright and becomes personally liable for all the estate’s debts, including any excess over the assets, so a negative estate reaches the heir’s own savings and salary.
• Acceptance under benefit of inventory (beneficiaire aanvaarding): liability is limited to what the estate contains, but it must then be wound up under the statutory liquidation rules, creditors first. A declaration is filed at the district court.
• Renunciation (verwerpen): the heir rejects the inheritance entirely, by declaration at court. This is irrevocable, and the share generally passes to that heir’s own descendants, who must then choose for themselves.

The trap is that pure acceptance can happen by conduct. Under art. 4:192 BW an heir who behaves as an unconditionally accepting heir is treated as having accepted purely: clearing the flat, selling the car, paying some creditors and not others, or taking a keepsake home can all count. Where solvency is uncertain, touch nothing and take advice first. For minors the representative may only accept under benefit of inventory.

The executor and the certificate of inheritance

An executor (executeur) can only be appointed by will (art. 4:142 BW). The task under art. 4:144 BW is to administer the estate’s assets and pay its debts, and in performing it the executor represents the heirs in and out of court (art. 4:145 BW). Where necessary the executor may convert assets into money to pay debts (art. 4:147 BW), and must give the heirs all information they request (art. 4:148 BW). One who does not act neutrally can be dismissed.

The certificate of inheritance (verklaring van erfrecht) is a notarial instrument under art. 4:188 BW stating who died, whether there was a will, who the heirs are, whether they accepted, and who may act for the estate. Banks and the land registry will normally not release funds or transfer property without one; the narrower verklaring van executele establishes only the executor’s authority. For international families it takes longer than expected, because foreign certificates may need legalisation or an apostille and sworn translation.

Inheritance tax in outline

Dutch inheritance tax (erfbelasting) is governed by the Successiewet 1956, separate from the civil law above. The beneficiary pays, on what that beneficiary receives — not the estate as such. The charge follows the deceased’s residence, not the beneficiary’s: broadly, it is due where the deceased lived in the Netherlands at death, wherever the heirs live. A Dutch national who emigrates is deemed by art. 3 SW 1956 to have remained resident in the Netherlands for ten years after leaving; the fiction is confined to Dutch nationals, so a foreign national who emigrates falls outside it.

Exemptions exist and depend entirely on the relationship. A surviving spouse or registered partner has a very substantial exemption, so many spousal inheritances attract no tax at all; a child’s is modest; a friend or sibling has only a small one. Rates are progressive, with two bands and three relationship categories: the further from the deceased, the smaller the exemption and the higher the rate. For 2026 the partner exemption is EUR 828,035 and that for a child EUR 26,230, and a partner or child pays 10 per cent up to EUR 158,669 above the exemption and 20 per cent above it. A survivor’s own pension entitlement eats into that exemption: under the pension imputation of art. 32 Successiewet 1956 the value of the pension accruing to the surviving partner is set off against the partner exemption, subject to a statutory minimum exemption that always remains, which for 2026 is EUR 213,915. Treat every figure here as a 2026 figure: the exemptions and the band limit are indexed each year, and it is the year of death that governs, so check the Belastingdienst table for that year rather than the current one.

The filing deadline has changed: it was eight months from the date of death, but under the Tax Plan 2026 both the filing period and the date from which tax interest runs have been extended to twenty months after the death. Note that the EU Succession Regulation does not deal with tax at all — the law governing the succession and the country entitled to tax it are decided by different rules, and are often different countries.

The international dimension

Habitual residence and choice of law

Regulation (EU) No 650/2012 applies where death occurred on or after 17 August 2015. Under Article 21 the law applicable to the succession as a whole is that of the State where the deceased had their habitual residence at death. One law governs the entire estate, movable and immovable, wherever situated. Article 21 also contains a narrow escape where the deceased was manifestly more closely connected with another State — an exception, not a planning tool. Habitual residence is not the same as municipal registration or tax residence, and for an expat posted here for a few years whose family home is abroad the answer may be arguable.

Article 22 allows a person to choose the law of a State whose nationality they hold, when making the choice or at death; someone with several nationalities may choose any of them. The choice must be made expressly in a disposition of property upon death — in practice, stated in a will in clear words. For internationals here this is the single most valuable planning step, and it works both ways: a foreign national who does not want a Dutch legitimate portion can choose their national law, and a Dutch national abroad who wants the statutory division can choose Dutch law.

Two cautions. Choosing a foreign law does not necessarily give more freedom: many civil-law systems have stricter forced heirship than the Dutch one, and Article 23 confirms that the applicable law governs the disposable part of the estate and reserved shares. And a choice of law changes nothing about tax. The Regulation binds the EU Member States other than Denmark and Ireland, and never applied to the United Kingdom. Where an estate touches a non-bound or non-EU country, check the Dutch position against that country’s own conflict rules, which may insist on applying their own law to immovable property.

The European Certificate of Succession

The Regulation created the European Certificate of Succession, governed by Articles 62 to 69, for heirs, legatees, executors and administrators who need to prove their status or powers in another Member State. In the Netherlands a civil-law notary issues it under art. 4:188a BW. It takes effect in all bound Member States without special procedure, and a person dealing in good faith with the holder is protected. Its use is optional, and it does not replace the Dutch verklaring van erfrecht domestically. The practical point is in Article 70: certified copies are valid for six months, with the expiry date stated on the copy. Foreign banks and registries reject expired copies, so request one when it is needed, not at the outset.