A second marriage. What about my children's inheritance rights?

More and more couples are forming a new composite family with one or more children from a previous relationship. If the new couple also decides to get married, this obviously has a huge impact on the inheritance rights of both partners and children, not least when the new partner is much younger than the other.

For many newly composed families, this situation is not unthinkable. Any tensions increase when the parent dies earlier than his/her new spouse, and the children consequently come to the estate of their father/mother together with the stepparent.

What inheritance implications does this entail and how can it be anticipated?

Without anticipating this, the entire estate of the parent will accrue in usufruct to the surviving spouse and in bare ownership to his/her children. However, the first deceased can, by will, limit the rights that the surviving spouse can exercise in his/her estate, but this limitation will not be able to go beyond his/her reservatory right of inheritance. The reservatory right of inheritance of the surviving spouse consists of the usufruct over half of all assets of the estate (abstract reserve) and at least the usufruct on the family home and the household effects therein (concrete reserve).

It is certain that in any case, after the death of the parent, there will be a usufruct-to- bare ownership ratio between the stepparent and the children. Until the time the surviving spouse dies, i.e. the time when usufruct accrues to bare ownership, the children will have to tolerate their step-parent's usufruct.

In certain situations, this (long-term) relationship can sometimes cause resentment between the stepparent and the stepchildren.

How can this be met?

On the one hand, the legislature provides for a transposition right for the stepchildren so that the (difficult) usufruct/ bare ownership relationship can be ended early. The conversion can be done by mutual agreement or requested before the family court. If the stepchildren request the conversion, the court will not be able to refuse it.

However, consent of the surviving spouse will always be needed for the conversion of usufruct on the family home and household goods.

Moreover, in the step-parent-child relationship, an additional correction is applied when valuing the usufruct to be converted. The valuation is done according to the conversion tables, where the principle applies: the older the surviving spouse, the lower the value of the usufruct. 

To accommodate the situation where the age difference between the stepchildren and their father's/mother's new spouse would be small, the surviving spouse is always deemed to be at least 20 years older than the eldest stepchild for the purpose of valuing usufruct.

On the other hand, the legislator envisages that spouses at least one of whom has a descendant from a previous relationship can, by marriage contract (thus with the consent of both), settle the rights that one can exercise in the estate of the other. Thus, each spouse can be disinherited in whole or in part by mutual agreement. This is done through a Falconer clause. Since the Falconer clause is an inheritance agreement, certain formal and procedural conditions will have to be respected.

However, the possibility of disinheritance is not completely unlimited. Even if the new spouses completely waive their inheritance rights in each other's estate, the surviving spouse will not be able to be turned away overnight by the stepchildren. Indeed, the surviving spouse will always be able to continue to occupy/use the main family home and household goods there for at least a period of six months from death.

Decision

Thus, thanks to the conversion law and the Falconer clause, a second marriage should not necessarily come at the expense of your children's rights from a previous relationship.

Feel free to contact us for further tailor-made advice!

Pauline.dewaele@vsadvocaten.be

Stefan.deplus@vsadvocaten.be

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