In the complex world of inheritance law, the legitimate portion is an important protection for surviving relatives. It is a legally defined portion of the inheritance to which children of the deceased are entitled, even if they have been disinherited. In this article, we provide an overview of the legitimate portion, including its calculation, entitlements, and the legal nuances that are important for both testators and heirs.

What is the legitimate portion?

The legitimate portion, also known as the 'child's share', is the part of the inheritance to which children of the deceased are always entitled, regardless of the content of the will. It is a fundamental right in Dutch inheritance law, designed to protect children from complete disinheritance. The size of the legitimate portion is half the legal inheritance to which the child would be entitled without a will.

Who is entitled to the legitimate portion?

Only children of the deceased and, in exceptional cases, their descendants, are entitled to the legitimate portion. Spouses, parents or other relatives are not entitled to this legal protection.

Size of the legitimate portion

The size of the legitimate portion is based on the value of the estate at the time of death. This basically includes gifts made by the testator during his lifetime. The purpose of this is to prevent the testator from circumventing the legitimate portion by gifting away his assets during his lifetime. However, there are complex rules about which gifts do or do not count and at what value. Moreover, it will not always be easy to find out whether and if so to whom the gifts were made.

Right to information

The right to the legitimate portion also entails an important right to information. Persons claiming the legitimate portion have the right to understand the size of the estate, as this is essential to accurately calculate the size of the legitimate portion. The person claiming the legitimate portion is entitled to full transparency about the composition and value of the estate. This includes not only the assets and debts at the time of death, but also any gifts made by the testator during his lifetime that may be relevant to the calculation of the legitimate portion. The executor or heirs are obliged to provide this information. This right to information enables the interested party to make an informed calculation of the legitimate portion.

Calculation of the legitimate portion: an example

Suppose a testator leaves an estate with a value of €500,000. The testator has three children, but has stipulated in the will that two children inherit nothing and the entire amount goes to the third child. Without a will, the children would each be entitled to one-third of the estate, i.e. €166,666.

The two disinherited children are entitled to their legitimate portion. The legitimate portion is half of the legal inheritance. In this case, the legal inheritance per child is €166,666, so the legitimate portion per disinherited child is half of that: €83,333.

The calculation would be as follows:

• Total estate: €500,000
• Legitimate portion per child without a will: €500,000 / 3 = €166,666
• Legitimate portion per disinherited child: €166,666 / 2 = €83,333

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In this scenario, despite the testator's wishes, the third child is not entitled to the full €500,000. The child is entitled to €500,000 minus the legitimate portions of the other two children (2 x €83,333 = €166,666), so a total of €333,334. The two disinherited children are each entitled to €83,333.

Claiming the legitimate portion

The right to the legitimate portion must be actively claimed. Heirs wishing to claim their legitimate portion must do so within a statutory period of five years after learning of the testator's death. It is also possible for the non-disinherited heirs or the executor to set a reasonable time limit for the disinherited children to learn whether the legitimate portion is claimed. In that case, the disinherited must comply with the deadline set. Failure to make the claim timely may result in loss of the right to the legitimate portion.

Payment of the legitimate portion

The legitimate portion entitles the heirs to a monetary claim against the estate, but not necessarily to physical property from the estate. This means that, in principle, heirs claiming the legitimate portion have no control over, for example, real estate or family heirlooms, unless otherwise agreed. The legitimate portion is considered a debt of the estate and must also be treated that way when settling the estate. The claim must therefore be paid out before the actual distribution of the estate between the heirs.

Conclusion

The legitimate portion is an important part of Dutch inheritance law and provides a safety net for children who have been disinherited. It is a complex matter that can be not only emotionally fraught but also legally challenging. These rights ensure that heirs cannot be completely disinherited and that they have the means to calculate and, if necessary, enforce their legal claims. However, it is a complex area, with the details of the calculation depending on the specific circumstances of each estate. Professional legal advice is therefore essential to protect the rights of all parties involved and to ensure that the deceased's last wishes are carried out fairly and according to the law. For both testators and heirs, it is advisable to seek legal advice from an inheritance lawyer to fully understand and correctly comply with the rights and obligations surrounding the legitimate portion. In this way, conflicts can be avoided and justice is done to the deceased's last wishes, within the framework of the law.

At SPEE advocaten & mediation, experienced inheritance law lawyer mr Angelique van den Eshoff is ready to assist you with questions about the legitimate portion, drafting a will, or litigation. Feel free to contact her for expert tailored advice.