{"id":1330,"date":"2023-03-08T07:31:52","date_gmt":"2023-03-08T06:31:52","guid":{"rendered":"https:\/\/vwg.nl\/uncategorized\/huwelijkse-voorwaarden-in-zicht-van-overlijden\/"},"modified":"2026-03-03T10:34:28","modified_gmt":"2026-03-03T09:34:28","slug":"prenuptial-agreements-in-the-event-of-death","status":"publish","type":"post","link":"https:\/\/vwg.nl\/en\/huwelijkse-voorwaarden-in-zicht-van-overlijden\/","title":{"rendered":"Prenuptial agreements in the event of death"},"content":{"rendered":"

Is it permissible, in the event of the death of one of the spouses, to enter into a prenuptial agreement in order to limit the inheritance tax liability? The Advocate General at the Supreme Court has given his opinion on that question opinion<\/a> published.<\/p>\n\n\n\n

The case<\/h2>\n\n\n\n

The case concerns two people who married in 2015 under the statutory community of property regime. As a result, they are both entitled to 50% of their total joint assets. In 2017, the husband fell seriously ill and the couple entered into a prenuptial agreement stipulating that the husband was entitled to 10% of the assets and the wife to 90%. A month and a half later, the husband died.<\/p>\n\n\n\n

Donation?<\/h2>\n\n\n\n

The Tax and Customs Administration takes the view that, by entering into the prenuptial agreement, the man gifted 40% of his assets to his wife. This gift took place within 180 days of the man\u2019s death and is therefore subject to inheritance tax. The wife is lodging an objection and an appeal against this levy.<\/p>\n\n\n\n

Things are still going well at the District Court of North Holland. Based on judgments of the Supreme Court from 1951 and 1971, the Court takes the view that, at the time the prenuptial agreement was entered into, there had not yet been a complete transfer of assets from the husband to the wife, and therefore no gift had been made. After all, it cannot be ruled out that the wife may die before the husband, in which case 90% of the assets would form part of her estate.<\/p>\n\n\n\n

The Court of Appeal in Amsterdam has dismissed the appeal lodged by the Tax and Customs Administration. The Court is of the view that the amendment to the prenuptial agreement must be treated as a gift, as the sole purpose of amending the prenuptial agreement is to avoid inheritance tax (fraus legis).<\/p>\n\n\n\n

The woman has lodged an appeal in cassation against this ruling with the Supreme Court. The Supreme Court\u2019s legal adviser, the Advocate General (AG), has stated that he is of the opinion that the Court of Appeal was correct to conclude that *fraus legis* applied. According to the AG, at the time the prenuptial agreement was entered into, it was foreseeable that the husband would die before the wife. Consequently, the avoidance of inheritance tax is the motive for this action. Furthermore, according to the AG, the transfer of assets was virtually certain at that time. The AG adds that accepting the tax consequences intended by the wife would open the door to a repeatable and arbitrary avoidance of inheritance tax. The Advocate General concludes by stating that the rectification must not involve a gift, but must be carried out as if the marriage contract had never been drawn up. Inheritance tax must then be calculated on the basis of the 50\/50 division that applied prior to the conclusion of the marriage contract.<\/p>\n\n\n\n

The final word<\/h2>\n\n\n\n

The final say, of course, rests with the Supreme Court. Will it go so far as to rule contrary to its judgements of 1959 and 1971? We will probably know in a few weeks\u2019 time.<\/p>","protected":false},"excerpt":{"rendered":"

Is het toegestaan om in het zicht van het overlijden van \u00e9\u00e9n van de echtgenoten huwelijkse voorwaarden aan te gaan om zo de heffing van erfbelasting te beperken? Over die vraag heeft de Advocaat-Generaal bij de Hoge Raad zijn opinie gepubliceerd. De zaak De zaak betreft twee mensen die zijn in 2015 gehuwd in wettelijke […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-1330","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"acf":[],"_links":{"self":[{"href":"https:\/\/vwg.nl\/en\/wp-json\/wp\/v2\/posts\/1330","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/vwg.nl\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/vwg.nl\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/vwg.nl\/en\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/vwg.nl\/en\/wp-json\/wp\/v2\/comments?post=1330"}],"version-history":[{"count":0,"href":"https:\/\/vwg.nl\/en\/wp-json\/wp\/v2\/posts\/1330\/revisions"}],"wp:attachment":[{"href":"https:\/\/vwg.nl\/en\/wp-json\/wp\/v2\/media?parent=1330"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/vwg.nl\/en\/wp-json\/wp\/v2\/categories?post=1330"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/vwg.nl\/en\/wp-json\/wp\/v2\/tags?post=1330"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}