Estate planning: pay attention to the reserved portion of the inheritance

In Belgian inheritance law, the reserved portion is a fundamental concept that determines the rights of legal heirs. It guarantees special protection to certain members of the deceased's family, ensuring they receive a minimum share of the inheritance. Understanding the reserved portion and its implications is essential for anyone considering estate planning or seeking to understand their rights as an heir.

What is the reserved portion in Belgium?

In Belgian inheritance law, the reserved portion, or reserve, corresponds to the minimum share of the inheritance that must be allocated to an heir. The reserve thus constitutes a portion of the inheritance that certain heirs must receive under all circumstances: it is untouchable, even by testamentary disposition. This principle of protecting certain heirs is a fundamental aspect of our inheritance law.

Who are the reserved heirs under Belgian law?

The heirs entitled to this reserve, known as "reserved heirs," are:

• the surviving spouse, who was married to the deceased (not the legal cohabitant or mere partner of the deceased);
• the children.

Calculation of the reserved portion for children

Children always benefit, collectively, from a reserve representing half of the estate of their deceased parent, which must be divided among them according to their number. Thus, an only child is entitled to a reserved portion of the inheritance equivalent to half of the estate of their deceased parent; two children are entitled to a quarter of the estate each; three children to a sixth of the estate each, and so on.

         

Calculation of the reserved portion for the surviving spouse

The reserve of the surviving married spouse is at least the usufruct of half of the estate, and this reserve must include at least the usufruct of the family home and the furnishings therein:

• if the usufruct of the family home is less than half of the estate, the surviving spouse will not only benefit from the usufruct of the home and furnishings but also from a supplementary usufruct on other assets of the estate to ensure their total usufruct reaches half of the estate;
• if the usufruct of the family home exceeds the usufruct of half of the estate, the reserve of the surviving spouse will be limited to the usufruct of this home and the furnishings therein.

Differences between a surviving married spouse, legal cohabitant, or de facto cohabitant

Unlike the widower or widow, the legal cohabiting partner has a right to the inheritance but no reserve. This means that they normally inherit the usufruct of the family home and the furnishings therein unless the deceased has revoked this right through a will - a revocation that is almost impossible to achieve for a reserved heir. The de facto cohabiting partner, on the other hand, has neither inheritance rights nor a reserve: they, therefore, inherit nothing unless provided for in a will.

Are parents reserved heirs?

The parents of the deceased do not have a reserve, but the heirs have a maintenance obligation towards them. Consequently, parents can claim maintenance, either as a lump sum or as a life annuity, provided they are in need at the time of death or as a result thereof.

Can a spouse be disinherited?

It is possible to completely disinherit a spouse, thus depriving them of their reserve, only if the following three conditions are met:

• the spouses have been living separately for more than 6 months at the time of death;
• prior to death, separate residence was requested in court, and the spouses did not resume cohabitation thereafter;
• a will disinheriting the surviving spouse was drawn up before death.

Can one or more children be disinherited?

It is, however, more complicated to completely disinherit a child, unless it is done through a will and the disinherited child subsequently does not claim their reserve. You can, however, favor one or more children over others by granting them all or part of the disposable portion, which is half of your estate not allocated to the reserve and which you can bequeath as you wish. Another possibility is enjoy your assets while you are alive without worrying about leaving a legacy to your descendants.

Valkeniers Pact: a legal means of protecting children from a previous marriage

The Valkeniers Pact can be included in the marriage contract of spouses, of whom at least one has a child from a previous union. It allows spouses to waive, in advance, all or part of their inheritance rights. This includes modifying the right to usufruct that the surviving spouse is supposed to inherit, in order to avoid splitting between child(ren) and step-parent. Thus, a Valkeniers Pact can provide that the surviving spouse will inherit the usufruct of the family home and furnishings for a limited period, allowing the full ownership to be quickly transferred to the children.

What happens if the reserved portion is not respected?

If, by will, the testator has not respected the rules of the reserve, the reserved heirs are entitled to claim their share of the estate up to their reserved portion. What the deceased has bequeathed will be "reduced" to the extent of the reserve they should have received: this is known as "reduction." Similarly, if a donation made prior to death deprives a reserved heir of their reserve, they can claim their minimum share of the inheritance.

Divorce and death during divorce proceedings

Divorce annuls the marriage and thus also the reserved portion that was a right of the former spouse. Moreover, if a mutual consent divorce procedure is initiated and one of the spouses dies during the procedure, the inheritance rules provided for in the agreements made prior to the mutual consent divorce will be applied. These rules may provide for maintaining or waiving the inheritance rights of the spouses towards each other during the divorce procedure.

Can the surviving spouse sell the usufruct of the family home?

Being a usufructuary entails certain obligations, certain charges. For example, maintaining the family home can be particularly expensive in some cases. In that case, the surviving spouse can waive their usufruct or convert it. The law provides for 3 ways to convert the usufruct of the surviving spouse:

• Conversion into full ownership: by buying back the bare ownership, the usufructuary becomes the full owner of the property or properties on which they exercised their usufruct;
• Conversion into a sum of money allocated to the usufructuary: the bare owners effectively buy back the usufruct and become full owners
• Conversion into an indexed and guaranteed annuity: this is also a repurchase of the usufruct, but this time the price consists of a life annuity.

How to determine the value of the usufruct?

Usufruct is a temporary right: it cannot exceed the life of the usufructuary and therefore automatically ends with their death. Therefore, the value of the usufruct depends on the age of the usufructuary. To calculate this, there are tables taking into account the age and gender of the usufructuary, the past evolution of interest rates, and the average life expectancy as annually published by the Federal Planning Bureau.

Easyvest portfolios, a guarantee of simplicity for your succession

Understanding the mechanism of the reserved portion is essential to ensure adequate estate planning and guarantee the respect of the rights of legal heirs. Our managers have a good understanding of this subject matter, and our investment portfolios offer numerous advantages for the preparation and implementation of an estate. Easyvest offers the possibility of opening investment accounts in joint ownership or in usufruct and bare ownership split. These options allow the investor to directly and durably involve their heirs in the management of their assets according to their wishes. Feel free to contact our managers for more information on this matter.