Divorce often gives rise to discussions about what does and does not fall within the marital community to be divided. When one of the spouses owns an asset that he or she has acquired under a so-called exclusion clause, one would think that the discussion would be quickly settled. After all, an exclusion clause stipulates that the asset does not fall within the community of property. But what if, during the marriage, a spouse inherits half of his parental home from his deceased father together with his brother and later buys the other half from his brother? Does the exclusion clause that his father included in his will apply to the entire house or only to the half of the house that the spouse inherited? And what about a bequest? Does an exclusion clause also apply if the house was acquired from a bequest?

What is an exclusion clause?

An exclusion clause in a will stipulates that what an heir receives (money, securities, a house or other assets) remains the private property of that heir and does not fall within a (marital) community of property, nor does it have to be settled on the basis of a periodic or final settlement clause. The clause therefore protects the acquisition against claims by a (future) partner and against distribution in the event of divorce or death. In addition, the clause often stipulates that replacement of property applies (the property that replaces the inheritance also remains private). Since 1 January 2018, inheritances and gifts have in principle been excluded from the limited community, but an exclusion clause remains important for older marriages (contracted before 2018), for settlement clauses, and to prevent discussions about fruits, replacement goods and any subsequent investments.

The Hague District Court, 4 August 2025 (ECLI:NL:RBDHA:2025:15177)

The case recently heard by the District Court of The Hague on 4 August 2025 (ECLI:NL:RBDHA:2025:15177) concerned the division after divorce of an apartment that the man had acquired from his mother's estate as a legatee under special title. The wife took the position that the husband had not acquired the entire flat, but that it had only been put in his name by other heirs of the mother in order to comply with the mother's wishes. In her will, the man's mother had included a so-called exclusion clause, but according to the woman, that exclusion clause did not apply to the bequest acquired by the man, in this case the flat.

However, the court took a very different view. The court ruled that, according to the will, the exclusion clause applied to everything acquired from the mother's estate and therefore also to a legacy. In addition, the court explicitly referred to an earlier ruling by the Arnhem-Leeuwarden Court of Appeal of 13 March 2014 (ECLI:NL:GHARL:2014: 2059), in which, in short, it was considered that if heirs jointly inherit a house under an exclusion clause, even if the flat is later allocated to one of them, the entire house falls under the exclusion clause. The Court of Appeal then also considered that this is no different if an apartment is acquired under a special title, such as a legacy. The latter situation arises in the case before the District Court of The Hague: the apartment was acquired by the man under a special title (i.e. a legacy) from an estate to which the exclusion clause applies.

Conclusion

The ruling of the District Court of The Hague confirms that property bequeathed under an exclusion clause falls outside the matrimonial community, even if it is later transferred in part to a single heir via other co-heirs.

Do you have questions about exclusion clauses, legacies or the division of property in the event of divorce? Please contact Angelique van den Eshoff of SPEE Solicitors & Mediation (specialist family and inheritance lawyer). She can assess your position and options with you and help you quickly find a workable solution.