Divorce and the importance of a will

Divorce and the importance of a will

The number of divorces is increasing. A marriage without a prenuptial agreement automatically creates a so-called marital community, also known as a "community of property." In this article, we discuss the impact of a divorce on marital community and the importance of a will. This applies to both divorces between married couples and registered partners, so where "married couples" is mentioned, this should also be read as "registered partners."

Divorce? End of marital property.

When you marry, a so-called "marriage community" is created. Which assets and debts of your spouses are included in this community depends, among other things, on whether the marriage took place before or after January 1, 2018, and whether a prenuptial agreement has been drawn up by a notary.

An important consequence of a divorce is that the marital community ends.

If you married before January 1, 2018 , and did not have a prenuptial agreement drawn up, the full community of property regime applies. This community of property includes assets that were privately owned before the marriage (also known as marital assets), as well as inheritances and gifts, and anything accrued during the marriage.

If you married after January 1, 2018 , or if you terminate your prenuptial agreement after that date, a limited community of property applies. This limited community differs from the full community of property in that marital contributions, inheritances, or gifts are not included in this community of property, but remain yours privately. However, you can deviate from this legal system by drawing up a prenuptial agreement with a notary.

The divorce: two important moments

There are two important moments in the legal divorce process. Namely:

1. the moment of filing the petition for divorce, and
2. the registration of the court order for divorce.

The request dissolves the community of property, but you and your spouse remain married. Only when the court order is registered does the marriage actually end.

1. Request for divorce: termination of community of property

The divorce proceedings begin with filing a petition for divorce. At that point, the community of property is dissolved, meaning that everything that was previously shared now belongs to each of you as spouses in equal shares. One of the consequences is that anything you or your spouse earns, inherits, or receives as a gift is no longer shared. It becomes the private property of the spouse in question. This does not mean that your obligation to support each other as spouses no longer exists: that obligation remains, often through the obligation to pay alimony (even after the divorce is legally finalized).

Then the court proceedings begin. You and your spouse will need to make agreements with the court regarding various matters, such as minor children, the division of previously joint assets, pensions, and alimony.

2. Court order: end of marriage

After the legal proceedings, the judge will issue a divorce decree. This decree must be registered in the civil registry at the request of both spouses or one of you. This can still be challenged, and only when the decree has become final and binding will the registration become final. The decree is then no longer subject to appeal, and your marriage is definitively ended.

Can your "almost-ex" still inherit from you? The importance of a will in divorce proceedings!

As long as you are married to your spouse, you are each other's heirs. If you have children, the statutory division applies, unless a will provides otherwise. The statutory division means that, in principle, your spouse inherits all your assets upon your death. The statutory system only comes to an end when the divorce is final (and not upon filing for divorce!). Therefore, if you do not want your spouse to inherit from you during the divorce proceedings, you must make a will disinheriting your spouse as soon as you begin the divorce process.

You can also stipulate in a will that if a divorce petition is filed, the provisions for the benefit of the surviving spouse will lapse. However, the surviving spouse will still have certain rights (known as "other legal rights"), such as the right to live in the former marital home for another six months. If the divorce proceedings began less than one year before the death, the surviving spouse can, under certain circumstances, continue to use the marital home and its contents by establishing a usufruct on them. The surviving spouse could also establish a usufruct on other assets if they require them for their care and the divorce proceedings began less than one year before the death. Your notary can provide you with further information on this.

After the divorce decree has been registered, there are no longer any rights or obligations between you and your ex-spouse.

It's wise to make a will during or after the divorce or to amend your existing will. If your minor children are your heirs, the other parent (your ex-spouse) still has the so-called "parental usufruct" of the children's inheritance, or the proceeds thereof. If you don't want this, you can exclude the parental usufruct in a will.

Example

Anja named her minor child Bas as her sole heir in her will. She specifically excluded her ex-husband Piet (Bas's father) as an heir. Parental usufruct is not excluded. If Anja dies, Piet could, for example, claim the interest Bas receives on a bank account, since Piet has usufruct of Bas's assets. Anja could have prevented this by stipulating in her will that Piet does not have parental usufruct of Bas's assets.

If one of your children inherits your assets and later dies, there's a chance your assets (through this child's inheritance) will still end up with your ex-spouse. You can prevent this in a will by making a so-called "two-step bequest." Your notary can provide you with comprehensive advice on the possibilities of this arrangement.

You can also put your children's assets under trust in a will until they reach a certain age. You can also appoint an executor in a will. There's much more to arrange in a will. We're happy to advise you.

Summary and tip

The divorce process begins with filing a petition for divorce. At that point, your marital property is dissolved, meaning that everything that was previously jointly owned now belongs to each spouse in equal shares. Whatever you or your spouse earns afterward no longer belongs to both of you. It becomes the private property of the spouse in question.

Please note: the divorce between you is only final when the court order for divorce is registered in the civil registry. If you wish to divorce your spouse, you should therefore be aware that you remain spouses as long as the divorce proceedings are ongoing (even after you have filed the divorce petition with the court!). This may mean that if you die during the divorce proceedings, your soon-to-be-ex-spouse will still be your heirs. You can prevent this by making a will.

Tip: Even if your divorce is final, it's advisable to make a will. This way, you can prevent your assets (for example, through your child) from ending up with your ex-partner.

Would you like more advice on this topic? Visit us or give us a call. An initial (phone) consultation is free. To schedule an in-office meeting or a video call, please call +31 (0)10 44 53 777. We look forward to seeing you.







This article is taken from 'Met Recht Geregeld', a product of FBN Juristen.

This article should not be considered legal advice. FBN Lawyers and MAES Civil-Law Notaries take the utmost care in the content of these articles, but accept no liability for any incompleteness or inaccuracy of an article, nor for any consequences thereof.