Though it is possible under Dutch law to draw up a last will to deviate from the intestate inheritance law, a testator’s descendants cannot be completely disinherited. They are entitled to a forced heirship portion.
This portion amounts to half of the share that the particular descendant would inherit if the intestate inheritance law were to apply. If a descendant claims his or her reserved share, he or she will no longer be considered as a beneficiary but as a creditor of the estate.
Quite regularly in the Netherlands, the forced heirship regime has been criticized as an unreasonable restriction of testators’ freedom to dispose of their estate. It is often seen as an anachronism. Within the framework of achieving a more modern inheritance law, its abolition has been championed by critics time and again.
Recently, social scientists commissioned by the Ministry of Justice and Security published the results of their research, which focuses on whether the forced heirship portion still has societal support and whether it should be abolished.
The core of the research is an online survey conducted among the Dutch population. The results of the survey show that 19% of the Dutch population is opposed to the forced heirship portion in all cases. 40% is always in favor. Another 40% is in favor in some cases described in the survey and opposed in others. This provides strong evidence that, in the Netherlands, people value the forced heirship portion, although there is also a large group that is of the opinion that it should not apply in all cases. This view is widely supported.
Support for the forced heirship portion does not vary significantly between people of different ages, genders, and other characteristics that were examined. This result is significant, as a (perceived) lack of popular support has often been used as an argument against the forced heirship portion.
However, the group that is in favor in some cases and opposed in others is sharply divided as to when the forced heirship portion is undesirable. Therefore, there is no broad support for allowing the forced heirship portion to be denied to children in specific cases.
Furthermore, social science literature shows that the argument sometimes used for abolishing the forced heirship portion — that family ties have become looser due to society becoming more individualistic — is not supported by sociological research. While family networks have become more complex, the sense of connectedness within families has not diminished.
Though time will tell whether a change in the law will occur eventually, the forced heirship portion will continue to be enforced for now.
By Joep Ertem, Westport Notarissen, Rotterdam (Netherlands)
