New position from the Tax and Customs Administration has major implications for divorcing spouses

In a divorce, many financial matters are settled: the division of the home, savings, debts and also the pension accrued during the marriage. On 5 March 2026, a striking new position on the latter was published by the Tax and Customs Administration’s Expert Group (KG:063:2026:1). The message is clear: anyone who, in the event of a divorce, waives their right to pension equalisation ‘without consideration’ is thereby making a taxable gift. This position formally confirms what has been seen in practice for years as a latent risk, but on which there has been no clarity for many years. This can have far-reaching consequences for spouses and their advisers alike, and these must not be overlooked.

What is pension equalisation?

The Pension Rights Equalisation Act (Wvps) regulates the division of the retirement pension accrued during the marriage in the event of divorce. The main rule is that both spouses are each entitled to half of the retirement pension that the other has accrued during the marriage. The spouse who did not accrue the pension themselves, known as the ‘entitled party’, thereby acquires an independent right to payment from the pension provider.

This is therefore not an asset that is divided upon divorce, such as a bank account or a property. From a legal perspective, pension entitlements actually fall outside the marital community. Article 1:94(2)(b) of the Dutch Civil Code expressly stipulates that entitlements to which the Wvps applies do not form part of the marital community. The Wvps is a separate regime that exists alongside matrimonial property law and applies regardless of which matrimonial property regime applies between the parties.

In practice, spouses sometimes deliberately opt for a different arrangement upon divorce. The Wvps permits this: the parties may make agreements in a prenuptial agreement or in the divorce settlement that set aside the standard equalisation, for example by waiving equalisation in full or in part, or by agreeing on a different percentage.

The Tax and Customs Administration’s new position (KG:063:2026:1)

In the position published on 5 March 2026, the Tax and Customs Administration’s Expert Group answers the following question: does a situation constitute a gift if, upon divorce, a spouse (partially) waives their right to pension equalisation out of generosity?

The answer is unequivocal: yes, if that spouse is not compensated for the waiver.

The Tax and Customs Administration bases this on the tax law concept of a gift as set out in Section 7:186(2) of the Dutch Civil Code, to which Section 1(7) of the Inheritance Tax Act 1956 refers. A gift requires three elements: impoverishment of the donor, enrichment of the recipient, and an intention to benefit (the will to benefit the other party). The Tax and Customs Administration argues that, in the case of a waiver of pension equalisation without consideration, all three requirements are met: the person entitled to equalisation is impoverished (their right to pension benefits lapses), the person liable for equalisation is enriched (he or she becomes the sole beneficiary of that portion of the pension), and the intention to benefit is present because the waiver is made explicitly and consciously.

The law and the legal background

The Tax and Customs Administration’s position is set within a broader legal context. As mentioned above, pension entitlements do not form part of the matrimonial community (Section 1:94(2)(b) of the Dutch Civil Code). The Pension Equalisation Act (Wvps), which came into force on 1 May 1995, regulates pension equalisation as an independent entitlement outside the division of property. This means that the person entitled to equalisation has an enforceable right: he or she may send the notification form to the pension provider within two years of the divorce without the ex-spouse’s signature being required.

It is precisely this enforceable nature that makes waiving equalisation a transfer of assets which the tax authorities classify as a gift. Anyone who waives an enforceable right without receiving anything in return thereby benefits the other party.

The spouses may exclude the application of the Wvps in a prenuptial agreement or in the divorce settlement (Section 2(1) Wvps and Section 1:155 of the Dutch Civil Code). However, this freedom of contract does not alter the tax consequences: even such a contractual exclusion without consideration constitutes a gift.

A risk that has been lurking for years

The Tax and Customs Administration’s position is new in the sense that it has now been formally established, but the debate is not new. The question of whether waiving pension equalisation constitutes a taxable gift had already been raised in the literature, including by pension experts. Some experts argued that it did not, because the legislator gives the parties the freedom to deviate from the standard distribution and therefore no enforceable claim exists. This reasoning lacked the intention to confer a benefit.

The Tax and Customs Administration rejects this reasoning and takes the view that the enforceability of the right to equalisation is the decisive argument. Previous publications indicate that practice had been different for years: the tax authorities tolerated parties waiving equalisation without tax consequences and did not issue tax assessments. With the position now published, that policy of tolerance has formally come to an end.

Practical advice

• Always ensure compensation: if a spouse wishes to waive pension equalisation, ensure that this is compensated for. This can be done by allocating another asset to the spouse who waives the right, for example a larger share of the home’s equity or a higher lump-sum payment. Where compensation is demonstrable and balanced, there is no impoverishment and therefore no gift.
• Set out the compensation in writing: explicitly document in the divorce agreement that compensation is being provided for waiving pension equalisation, and specify how this is to be done. Vague wording is not sufficient. In the event of an audit, the tax authorities will want to see that the value of the waived entitlement has actually been taken into account.
• Have the value of the pension entitlement calculated: to agree on fair compensation, it is essential to know the present value of the equalisation entitlement. Engage an actuary or pension adviser in good time to avoid any surprises.
• Take gift tax exemptions into account: should a gift be made between (former) spouses, bear in mind the annual gift tax exemption. Pension equalisation typically involves substantial sums, so the exemption is quickly exceeded.
• Pre-nuptial agreements with pension arrangements: when drawing up or amending pre-nuptial agreements, also consider the tax implications of non-standard pension arrangements. What is permissible under civil law may have unexpected consequences under tax law.
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Conclusion

The position of the Tax and Customs Administration’s Expert Group of 5 March 2026 (KG:063:2026:1) makes it clear that waiving pension equalisation in the event of divorce constitutes a taxable gift on which gift tax is due. This is an important signal for divorce practice: whereas pension equalisation was often written off in many agreements without further tax consideration, this is no longer possible without risks from now on. The key lies in a balanced compensation that is set out in writing and in a verifiable manner. Pensions are pre-eminently a subject where the financial and legal stakes are high and where an integrated approach is indispensable.

Do you have any questions about pension equalisation, the implications of the Tax and Customs Administration’s new position, or the financial settlement of your divorce in a broader sense?

Please contact Angelique van den Eshoff, LL.M., of SPEE Advocaten & Mediation in Maastricht. As a specialist in family and inheritance law, she will guide you through the entire financial and legal settlement of your divorce, including the division of pension rights. She will be happy to work with you to find a balanced and responsible solution.