Inheritance under exclusion clause is common in practice. The exclusion clause plays an important role in divorce or the end of a partnership. Although the assets received appear to be strictly private, questions often arise during the division: What happens to that inheritance if it has been incorporated into the joint assets? Is the partner entitled to compensation, and if so, how is it calculated? There is a great deal of uncertainty, especially now that the courts have recently provided further clarification on the nominal right to compensation.

What is a nominal right to compensation?

An exclusion clause in an inheritance means that the inheritance does not belong to the marital community, but remains private to the heir. Nevertheless, this inheritance can be mixed with the joint assets through transfer or expenditure. In that case, a right to compensation arises: the heir is entitled to reimbursement of the “nominal” amount of his or her inheritance if it has benefited the community, i.e. exactly the original amount without adjustment for increase or decrease in value. This differs from the so-called investment doctrine, whereby the compensation moves in line with the value development of the asset.

Typical situations are:

• A partner receives an inheritance under an exclusion clause and deposits (part of) the amount into a joint account;
• The money is used for joint expenses, household costs, or investments;
• In the event of divorce, the question is how much must be repaid to the heir.
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The law and nominal compensation rights

The exclusion clause is regulated by law in Article 1:94 of the Civil Code (BW) on the community of property, and Article 1:96 BW (compensation rights). An inheritance with an exclusion clause is private, unless it becomes mixed with the community. The heir then receives a right to compensation based on the amount that actually benefited the community.

For compensation due to inheritance under an exclusion clause before 2012, the nominal doctrine (old law) applies. Since the introduction of Article 1:87 of the Dutch Civil Code on 1 January 2012, the investment doctrine applies to asset transfers, but not to rights arising from an inheritance under an exclusion clause, as evidenced by a recent ruling by the Court of Appeal in The Hague on 22 October 2025 (ECLI:NL:GHDHA:2025:2222). In this ruling, the court confirms that nominal compensation continues to apply in this case.

The ruling (Court of Appeal in The Hague 22-10-2025 ECLI:NL:GHDHA:2025:2222)

The situation:

The man and woman are married in full community of property. During the marriage, the man receives an inheritance with an exclusion clause and transfers the amount to his private bank account, which also contained other funds. Upon divorce, the question arises as to the amount on which the right to compensation is based. The nominal amount or its investment value?

The court ruled:

According to the court, the man fails to recognise that his private account belongs to the marital community and that, by depositing the inheritance into this bank account, it has been mixed with funds belonging to the marital community. According to established case law, it is therefore assumed that the inherited funds have become part of the joint property as a result of this mixing and that, as a result of this transfer of assets, the man is in principle entitled to compensation for that amount from the joint property. The right concerns nominal compensation; the investment doctrine does not apply, so only the original amount of the inheritance can be reclaimed. It does not matter whether the money has yielded a return or increased in value. The court also ruled that, in the event that expenses were incurred from the joint bank account into which the inheritance was paid, the presumption in favour of the man is that these expenses related to joint debts. This means that his right to compensation from the joint property is not affected.

Comparison with older rulings

In the ruling of the Court of Appeal in The Hague of 22 October 2025, it is explicitly considered that when funds inherited under an exclusion clause are mixed with the community property, only a nominal right to compensation arises. The court refers to the Supreme Court and excludes the application of the investment doctrine.

This confirms a line previously followed by other courts: the nominality principle is the starting point in cases of cold exclusion and when private assets are mixed with community funds. The rationale is that the protective nature of the exclusion clause (preserving private character) is lost when assets are mixed, as a result of which only the nominal amount can be reclaimed from the community.

The investment doctrine therefore only applies if the private assets remain traceable and are not mixed with the joint assets.

Practical advice

• Always clearly document the amount received and the destination of the inheritance (bank statements, agreements).
• Preferably deposit an inheritance under an exclusion clause into a private account, not a joint account.
• Do not mix the amount with joint assets if the private status is important.
• When spending inheritance money on the community: record in writing which expenses come from private assets.
• If in doubt, seek legal advice before completing asset statements in the event of a divorce.
• For each settlement, always check the date of acquisition (before or after 2012) and the exact wording of the exclusion clause.
• Bear in mind that the nominal compensation applies, and therefore value development is not taken into account.
• If there is disagreement about compensation rights, contact a solicitor specialising in family law.
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Conclusion

Anyone who receives an inheritance under an exclusion clause has a strict nominal right to compensation when it is mixed with the joint assets: the exact amount of the inheritance, no more and no less. Value development and returns are not relevant. The recent ruling by the Court of Appeal in The Hague confirms this practice; it is therefore important to seek timely and expert legal advice in the event of divorce and division of assets.

Would you like to know what your rights are in the case of an inheritance under an exclusion clause, or do you have a dispute about compensation rights? Please feel free to contact Angelique van den Eshoff of SPEE Solicitors & Mediation, a specialist in family law and inheritance law. She will be happy to assist you and ensure that your interests are represented professionally and effectively.