Restrictions on the freedom to dispose of one’s succession by will (reserved portion).
Last update: 10/1/2012
Belgian law recognises the principle of reserved portions, whereby a minimum portion (the reserved portion) of the succession must devolve to the surviving spouse, children, father and mother of the deceased. This reserved portion amounts to half of the succession if there is one child (or descendant), 2/3 where there are two children and 3/4 if there are three or more children. If there are no descendants or a surviving spouse, the father and mother are each entitled to a quarter of the succession.
The surviving spouse always receives at least the usufruct of half of the assets comprising the inheritance. This half will include at least the usufruct of the property used as the main home and its furniture.
If the testator has chosen not to take account of the reserved portion in his/her will and the heirs agree to respect his/her wishes, then the will may be applied. But heirs whose reserved portion has not been respected, and who intend to claim it, are entitled to institute an action in abatement.
Is there a reserved portion set aside for heirs? What percentage of the estate does this reserved portion represent? What is its legal nature?
The children (Art. 913 and 914 Civil Code), the surviving spouse (Art. 915a Civil Code) and the parents (Article 915 Civil Code) are entitled to a reserved portion if there are no descendants and no surviving spouse. The surviving cohabitee is not a forced heir.
These provisions are mandatory, indeed public policy.
What is the procedure to be followed to assert a right to the reserved portion? What are the time limits?
Heirs whose reserved portion has not been respected and who intend to assert their right to it must institute an action for abatement (Art. 920 et seq. Civil Code) in order that donations and legacies exceeding the disposable portion of the estate are reduced. If the request for a reduction relates to previous donations, the most recent donations to date will first be reduced. If this request relates to legacies granted by a will, all the legacies will be reduced proportionally. However, if it relates to previous donations and legacies, the legacies will first have to be reduced before possibly having to reduce the previous donations. The action for abatement expires after 30 years.
Is it possible to renounce the reserved portion?
Yes, but only following the death of the person concerned (Art. 791 Civil Code).
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Successions in Belgium
Current country: Germany