In my previous article, I discussed the fiscal disadvantage spouses could run into if they enter into an unequal marital property regime. As a result of this downside, spouses may overlook an advantage of having an unequal marital property regime, which relates to the reserved (or statutory) share of their descendants.
Descendants of deceased individuals (their children or grandchildren if their children have predeceased them) cannot be completely disinherited, since they are entitled to a reserved share. Briefly put, the reserved share amounts to a one-half share of the descendant’s portion in the estate. If a descendant invokes their reserved share, they will no longer be considered as an heir, but as a creditor of the estate. However, if spouses wish to reduce the entitlements of one of their descendants as much as possible, they may include in their nuptial agreement an entitlement ratio at the expense of the spouse whose descendant’s rights they wish to reduce. As a consequence, the descendant would merely be able to invoke their reserved share in the deceased parent-spouse’s estate upon their parent’s death. If the spouses have included an entitlement ratio of 90%/10% in their nuptial agreement, 10% being the deceased parent-spouse’s share in the community of property, the entirety of that parent-spouse’s estate would therefore be much smaller than if the default 50/50 ratio had applied.
However, some questions have been raised about this in the literature. For example, it is questionable whether this is compatible with Dutch public policy and/or good morals because, by entering into such an agreement, the future application of provisions of mandatory law (reserved share) is avoided with a probability bordering on certainty. More discussion on this matter and case law will shed light on this in due time.
December 23, 2025
By Joep Ertem, Westvaer Notarissen, Rotterdam (Netherlands)
