My father is a widower and is getting remarried. What now?

Remarriage of surviving parent after death of first parent

If one parent in a family with children dies, the "statutory distribution" applies, unless that parent made a will and stipulated otherwise. The "statutory distribution" is a kind of automatic division of the inheritance between the surviving parent and the children. Under this division, the surviving parent becomes 100% owner of all assets from the deceased parent's estate. However, the surviving parent does incur a debt to the children equal to each parent's share. In principle, this debt is only due upon the death of the surviving parent. As a result, the surviving parent receives both the assets jointly owned by both spouses, as well as the private possessions of the first deceased. This includes objects that originated from their family, such as the family Bible from 1785, the family silverware, and inherited capital, including, for example, the claim the deceased had against their own surviving parent due to the death of that parent.

Example

Aart is married to Betty in community of property. They have two children, Chris and Denise. Aart's father is deceased, and as a result, Aart still has a claim on his mother, Grietje. Aart also inherited the family silver from his uncle's estate. The marital property between Aart and Betty included a house. Aart died without a will (so there was no deviation from the legal division). As a result, Betty received the house, the silver, and an old Bible from Aart's family. Betty also received Aart's claim on his own mother, making Betty the creditor of her mother-in-law, Grietje. When Grietje dies, Betty will collect Aart's claim. This will usually be agreed to, but what if Betty decides to remarry Piet? If this marriage took place after January 1, 2018, everything Betty inherited from Aart will, in principle, be privately owned. On the other hand, if Betty dies without making any arrangements, the statutory division will apply. Piet, as the surviving spouse, will then inherit all of Betty's property, including what she received from Aart's estate. The monetary claim Chris and Denise had against Betty from Aart's inheritance has become due and payable upon Betty's death. This must be paid out, but this will not return the assets inherited from Aart's family.

Voluntary rights

The remarriage of a surviving parent therefore creates the risk that assets from the estate of the first deceased parent will eventually end up with a stepparent or even the stepparent's heirs. In this way, the assets disappear from the family.

Example

Suppose that Chris and Denise, following Aart's death, each had a claim on Betty of €35,000, making a combined total of €70,000. Upon Betty's remarriage, they invoke their testamentary rights. They can use this to claim, for example, the Bible, the silver, and the claim on their grandmother Grietje from their mother Betty. This amounts to a total of €50,000. The total claim on Betty then amounts to €20,000. They may also claim other assets from Aart's estate for this amount. Betty can, however, reserve the usufruct of these assets. This means that the assets cannot be removed from her during Betty's lifetime. Consequently, the Bible, the silver, and the claim are no longer part of Betty's estate. Therefore, they will not be passed on to Piet. If Chris and Denise do not invoke this right of consent upon Betty's remarriage (Betty is not obliged to inform the children about the marriage), they can still do so within a reasonable period after Betty's death or the death of the step-parent (Piet).

Testamentary rights are often excluded in a will: why?

In principle, the arrangement of testamentary rights is convenient. Family belongings can remain in the family, and the surviving spouse will not be affected by them due to the usufruct. However, most wills stipulate that these testamentary rights will not apply, or will only apply to a limited extent.

This is done, for example, because there are often no strong family-related assets. It is also often overlooked that the claim against a surviving parent (Grietje) due to the death of a child (Aart) can, through the operation of the statutory division, end up with the surviving spouse (Betty).

Tip: You can prevent this with a good will. We can explain this in more detail.

There's another very important reason why testamentary rights are often (fully or partially) excluded in a will: the law grants children testamentary rights to everything that belonged to their parent's estate. This includes not only private property, but also their share in assets that belonged to the marital community. For example, half the house, half the car, and half the bank account. And if children invoke this testamentary right, they can also claim a portion of these previously joint assets. Thanks to usufruct, the surviving parent doesn't have to relinquish this during their lifetime. However, almost all the normal usufruct rules of the law apply to this usufruct, which limits the surviving parent's use. For example, the usufructuary may live in the home (without compensation), but may not sell the home without the children's consent.

Continue example

Aart has no will (and therefore his testamentary rights are not excluded). Under statutory inheritance law, Chris and Denise can invoke their testamentary rights regarding Aart's inheritance if Betty remarries. This could mean that Betty would have to transfer part of the house to her children. In that case, she would retain the usufruct of the house for as long as she lives. However, if Betty ever wants to sell the house, she would be partly dependent on the children's cooperation.

That's why wills often stipulate that testamentary rights will not apply. This prevents the surviving parent from potentially becoming bound to the children. To keep family possessions within the family, a limited provision regarding testamentary rights is sometimes included in the will. These rights might be limited, for example, to household goods, jewelry, or certain family objects.

Summary and tip

The remarriage of a surviving parent creates the risk that family heirlooms from the deceased parent's estate will eventually end up with a stepparent or even the stepparent's heirs. This can cause these assets to disappear from the family. This is why testamentary rights were created. Children have the right to take possession of the assets from their deceased parent's estate to pay their share of the inheritance from the deceased parent. As long as the surviving parent/stepparent is alive, they have the right to retain the (usufruct) of these assets. To be able to claim such testamentary rights as a child, they must not have been excluded in the will of your deceased parent!

If you, as parent(s), want to draw up a will, be sure to consider these rights! These rights have advantages and disadvantages, which your notary can explain during your consultation about the most appropriate will for you. It can be very frustrating within a family if these rights are declared inapplicable or not at all.

Would you like more advice on this topic? Visit us at Verploegh Chasséplein 1, 3134 BZ Vlaardingen, chat via www.maesnotarissen.nl, email service@maesnotarissen.nl, or call us at +31 (0)10 44 53 777. We look forward to seeing you.










This article is taken from 'Met Recht Geregeld' (www.metrechtgeregeld.nl), a product of FBN Juristen.

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