Limited community of property in the Netherlands: what is shared?

If you married in the Netherlands on or after 1 January 2018 without a notarial prenuptial agreement, you are married in a limited community of property (beperkte gemeenschap van goederen) under Article 1:94 of the Dutch Civil Code (BW). What you build up together during the marriage is shared; what each of you owned before the wedding, and inheritances and gifts, stay private, unless you married before 2018, in which case the old universal community still applies.

Below we explain which assets are shared, what you must prove if the marriage ends, and what international couples should arrange differently.

What changed on 1 January 2018?

Until 31 December 2017 the Dutch default was the universal community of property (algehele gemeenschap van goederen): on marriage, virtually everything each spouse owned or owed merged into one joint estate. The Act limiting the statutory community of property (Wet beperking wettelijke gemeenschap van goederen, Stb. 2017, 177) replaced that default for marriages concluded from 1 January 2018.

The same rules apply to registered partnerships, because Article 1:80b BW declares the relevant parts of Book 1 applicable. The Act has no retroactive effect: if you married earlier without a prenuptial agreement, you remain in the universal community until you change regime by notarial deed.

What falls inside the limited community?

Under Article 1:94 BW the community comprises everything the spouses already owned jointly before the marriage, plus everything either of them acquires during it: salaries, savings, a house bought during the marriage, and investments from marital income. An asset in one spouse’s name but paid from joint funds is also shared.

Pre-marital joint property often catches couples out. If you bought a flat together before the wedding and one of you paid the whole deposit, it enters the community in equal shares on the wedding day. The spouse who contributed more keeps a reimbursement claim for that difference, which itself stays outside the community.

What stays outside the community?

Assets owned before the marriage

Anything one spouse owned alone before the wedding day stays that spouse’s private property, such as a flat, a share portfolio or a shareholding (Article 1:94 BW).

Gifts and inheritances

Article 1:94 BW places inheritances, legacies and gifts outside the community, whether received before or during the marriage. A donor who wants the asset to be shared must now use an inclusion clause (insluitingsclausule). An exclusion clause (uitsluitingsclausule) in a will or deed of gift still has force: the asset then stays outside even if the spouses’ prenuptial agreement says inherited assets fall in.

The fruits of a private asset are also private, so rent from an inherited property and dividends on inherited shares stay out, as does a compensation claim that replaces a private asset.

Assets bought partly with private money

Under Article 1:95 BW an asset a spouse acquires stays outside the community if more than half of the price comes from that spouse’s private property. If private funds cover half or less, the asset falls in and the contributing spouse gets a reimbursement claim, calculated under Article 1:87 BW so that the claim moves with the asset’s value rather than staying at the sum invested.

What must you be able to prove?

Where spouses dispute which of them an asset belongs to and neither can prove their right, Article 1:94 BW treats it as community property. Under Article 1:96 BW, a spouse who tells a creditor that an asset does not belong to the community must also prove it. From the day of the marriage, therefore:

• Draw up a dated schedule of what each spouse owns and owes at the date of marriage, with documents.
• Keep inherited and gifted money in a separate account in one name.
• Keep the will or deed of gift and the bank record of the transfer for as long as the marriage lasts.
• Where private money buys or improves a joint asset, record the amount, the date and the total purchase price, because Article 1:87 BW needs the proportion.
• Keep the paperwork when a private asset is sold and replaced, so the chain stays traceable.

What does a business outside the community cost?

A business one spouse owned before the marriage, or an inherited shareholding, stays outside the community. Under Article 1:95a BW the community is, however, entitled to a reasonable compensation for the knowledge, skills and labour the spouse applied to that business, insofar as this has not already benefited both spouses in another way.

This also applies when the business runs through a company that the spouse predominantly controls. An entrepreneur who leaves profits in the company and pays a low salary may owe the community a substantial sum on divorce or death; if a market-level salary was paid into the joint account, the compensation may be nil.

Which debts are shared?

Under Article 1:94 BW the community comprises joint debts from before the marriage, debts relating to jointly owned assets, and all debts of either spouse that arise during the marriage. A student loan or business debt one spouse incurred alone before the wedding stays private.

A creditor of that private debt can still enforce against community assets (Article 1:96 BW), but recourse is limited to half the proceeds of the asset sold. The other spouse may also take the asset over by paying half its value from their own property.

What happens to the community on divorce?

Under Article 1:99 BW the community is dissolved by operation of law when the divorce petition is filed, not when the divorce is registered. That date fixes what belongs to the community; income earned and debts incurred afterwards are private. Against third parties who were unaware of it, the dissolution counts only once the petition is entered in the matrimonial property register (huwelijksgoederenregister).

Article 1:100 BW gives the spouses equal shares in the dissolved community, unless a prenuptial agreement or a written agreement made in view of the divorce provides otherwise. The equal split applies to the community only, so first establish what is community and what is private, settle the claims under Articles 1:87 and 1:95a BW, and then divide the community in half.

Pension rights built up during the marriage are divided separately under the Pension Rights Equalisation (Divorce) Act (Wet verevening pensioenrechten bij scheiding), with equalisation as the default. The bill for a Pension Division on Divorce Act 2022 (Wet pensioenverdeling bij scheiding 2022), which would make conversion into an own pension the default, is still pending in parliament and not in force.

What happens to the community on death?

Death also dissolves the community, at the moment of death (Article 1:99 BW). Half belongs to the surviving spouse and forms no part of the estate; the other half falls into the estate together with the deceased’s private property.

Without a will, the statutory division of Article 4:13 BW gives the surviving spouse the estate, and each child a money claim against that spouse. Because inheritances, gifts and pre-marital property are now private, the estate is often larger than under the old law, so a will drafted on the old assumptions should be reviewed.

When is a prenuptial agreement still useful?

The limited community is only a default. Couples can make prenuptial agreements (huwelijkse voorwaarden) before or during the marriage, but only by notarial deed on penalty of nullity (Article 1:115 BW). Against third parties who were unaware of it, the agreement counts only once registered in the matrimonial property register (Article 1:116 BW).

Couples use one for three purposes: full separation of property with a periodic settlement clause; a return to the universal community; or keeping the statutory regime while adding a schedule of pre-marital assets and debts and a method to calculate the Article 1:95a BW compensation. If a periodic settlement clause is never operated, Article 1:141 BW presumes that the assets present at the end were formed from what should have been settled.

What should international couples do differently?

Which country’s law applies?

All of the above is Dutch law, and it only matters if Dutch law governs your regime. For spouses who married or chose a law on or after 29 January 2019, Regulation (EU) 2016/1103 decides. Absent a choice, Article 26 applies the law of the spouses’ first common habitual residence after the marriage, failing that their common nationality, failing that the state with the closest connection.

Two Italians who marry in Rome and move to Eindhoven a month later will therefore usually be governed by Dutch law. For marriages from 1 September 1992 up to and including 28 January 2019 the 1978 Hague Matrimonial Property Convention applies, which can switch the applicable law automatically during the marriage; for older marriages the rule of Chelouche/Van Leer (Hoge Raad 10 December 1976) applies.

How do you make a choice of law?

Article 22 of the Regulation lets spouses choose the law of a state of which either is a national, or where either has their habitual residence. Under Article 23 the choice must be in writing, dated and signed by both, and in the Netherlands it must be made by notarial deed (Article 1:115 BW). For a couple staying a few years and then moving on, a choice fixes one regime for the whole marriage.

What about foreign assets?

Under Article 21 of the Regulation one law governs all assets wherever located, so a flat in Lisbon is part of the Dutch analysis if Dutch law applies. A foreign inheritance is private under Article 1:94 BW, but you need the foreign will, deed or bank record to prove it, and reimbursement claims under Article 1:87 BW should be recorded in the currency paid.

What should you check as an entrepreneur spouse?

• Whether your business or shareholding is private, and the evidence for that on the wedding date.
• Whether you pay yourself a market-level salary into the joint account, documented in the company accounts.
• How large a possible Article 1:95a BW compensation claim could be, and whether a prenuptial agreement should fix the method.
• Whether a private business debt could be enforced against community assets.

What should you check as the other spouse?

• Which assets were bought during the marriage and therefore belong to the community.
• Whether profits were retained in your spouse’s company rather than paid out.
• Whether you contributed private money to a joint asset, and the records for a reimbursement claim.
• Whether the divorce petition date has been fixed, since it determines the community.

What can we do for you with the limited community of property?

From Eindhoven and Amsterdam, our family lawyers advise Dutch and international couples on matrimonial property:

• We establish which country’s law governs your matrimonial property regime.
• We draw up the schedule of private and joint assets and debts for the division.
• We calculate reimbursement claims under Article 1:87 BW and the business compensation under Article 1:95a BW.
• We draft the divorce settlement (echtscheidingsconvenant) and the division of the community.
• We review a draft prenuptial agreement or choice of law with your civil-law notary.

Summary

• Married in the Netherlands from 1 January 2018 without a prenuptial agreement: you are in a limited community; earlier marriages stay in the universal community unless changed by notarial deed.
• Inheritances, gifts and pre-marital assets are private by default; what you build up together during the marriage is shared.
• If you cannot prove an asset is private, Article 1:94 BW treats it as community property.
• A business outside the community can still give rise to a compensation claim under Article 1:95a BW.
• If you are not both Dutch or lived abroad first, establish which country’s law governs your regime.

Frequently asked questions