Under Dutch law, the limited community of property is established by default. Principally, this means that all assets acquired and debts contracted during the marriage will be jointly owned or borne by both spouses on a 50/50 basis, with the exception of inheritances and gifts.
A couple may deviate from this 50/50 entitlement ratio during marriage by means of a postnuptial agreement. They could state that one of the spouses is entitled to a much larger portion than 50% and, consequently, the other spouse would be entitled to a smaller portion.
Following a ruling by the Dutch Supreme Court, the principle was that entering into a marital community of property with unequal portions was not a gift since assets were not transferred by one spouse to the other as a result of this change. Taxes could only be levied when the community of property was actually divided, for example, at the end of the marriage owing to divorce or death. If one of the spouses was over-allocated assets without having to pay any over-allocation compensation to the other spouse, gift tax could be levied.
However, as of the 16th of September, this principle no longer applies to changes to marital communities of property. Therefore, if a spouse is entitled to more than one-half share of the marital community of property, under coming regulations, this will be regarded as an acquisition under inheritance law (in the event of death) or a gift (in the event of divorce).
This is different from the principle that once applied to spouses and is intended to prevent them from adjusting their division of assets shortly before death in order to avoid taxes. Therefore, this should be taken into consideration when advising spouses on their estate planning.
1 October 2025
By Joep Ertem, Westvaer Notarissen, Rotterdam (Netherlands)
