It is impossible to disinherit your child in Belgium: fact or fiction?
February 27, 2023
5 minutes to read
In Belgium, parents can't completely disinherit a child, provided that the child agrees. Sounds complicated? Allow us to explain.
In theory, it is impossible to disinherit a child. Inheritance law offers special protection to both your children and the surviving spouse. In the event of your death, they are entitled to a minimum portion of the inheritance. The legal term for this indefeasible portion is referred to as the forced estate.
What is the indefeasible portion of the inheritance?
All your children together are entitled to at least half of your estate. If you have one child, that child is entitled to at least half of the value of your estate. If there are two children, they are each entitled to one quarter of your entire estate. If there are three, they are each entitled to one sixth. So, half of the estate always goes to the children and each child is entitled to their equal portion of that half. This applies to your biological children and to any adopted children and children born out of wedlock. You are free to choose who you leave the other half to. That half is referred to as the free estate. If you have two children, this means you can favour one child over the other by leaving your free estate entirely to that one child, for example by means of a will. In that case, the disfavoured child will only receive one quarter of your estate and the other child three quarters. A will is therefore one simple solution to favour or disfavour children. And there is more ...
Disinheriting your child with a will
Although in theory you can't disinherit a child (entirely), there are still ways of doing this, or rather ways of attempting to do this. Again, a will offers a possible solution here. You can have a will drawn up by a notary to formally disinherit a child. For example, the will could state that your entire estate must go to one of your children. You are free to have such a will drawn up. However, it does not offer you (complete) certainty. If the disfavoured child wishes to do so, they can still take steps to receive the portion they are entitled to. However, they have to do this on their own initiative. Although inheritance law stipulates that every child is entitled to a minimum portion of the estate, it does not include a mechanism that automatically protects any disfavoured children. You can therefore try to formally disinherit a child in a will. However, if the disfavoured child does not agree with the provisions of your will, they can decide to reach an amicable settlement with the estate's beneficiaries. Or they can start court proceedings referred to as abatement action. Such proceedings will reduce a bequest or gift to ensure the disfavoured child inherits their forced estate. In short, you can only disinherit your child completely if the child does not object. You can therefore state in your will that you are leaving them nothing. If the child does not object to this after your death, your wishes will be executed as stated in the will.
Other techniques for attempting to disinherit a child
A will is one way you can try to disinherit a child, but there are other options:
- You can make a gift to a child you want to favour or to someone else during your lifetime. However, as with a will, the disfavoured child can take abatement action in court after your death if it transpires that you have been giving away your assets too generously during your lifetime. The 'notional estate’ will be established after your death. This is the value of your total estate plus any gifts made during your lifetime minus any debts. Your assets will then be distributed based on this notional estate. However, after several years many manual gifts or even gifts by bank transfer are 'forgotten' in the calculation of the notional estate. One option that tends to be difficult to achieve in practice when the relationship has soured but is still worth mentioning is to conclude what is referred to as a punctual inheritance agreement with the help of a notary. Under such an agreement, you make a gift to someone you wish to benefit and the disfavoured child accepts in writing that this compromises their forced estate.
- You can also disfavour a child in a targeted way when purchasing real estate: you can split the property's ownership between yourself as the usufruct holder and someone else as the bare owner. Suppose you have two children, a son and a daughter, and you want to disfavour your son and favour your daughter. In that case you can make yourself the usufruct holder of a newly purchased property and your daughter the bare owner. Of course, there is no obligation to involve your son in such split ownership. In the event of your death, the property's usufruct will automatically transfer to your daughter and your disfavoured son will not be able to claim any of the property as part of his forced estate. Please note that there are specific conditions attached to such split ownership. It is therefore advisable to coordinate such plans with a notary.
- Another option is to leave everything to your spouse. You can do this by adding a survivorship clause to the marriage contract. This means that in the event of your death, the entire estate will go to the surviving spouse. This is not a good option, however, if you specifically want to disinherit one child, as the other child will also have to 'wait' for their inheritance until both parents have passed away. Moreover, it is only a temporary solution. When the surviving spouse dies, the estate will have to be passed on again. Such a clause also tends to be less attractive from a tax point of view as it gives the tax authorities a share of the pie twice: first after your death and then a second time when your spouse dies. It may therefore be more interesting to opt for a choice clause that gives the surviving spouse the choice to remove the family home from the estate or not. This does mean that you are leaving this decision up to the surviving spouse, thereby relinquishing some control over how your succession is arranged. Actually this method is best suited to protect the surviving partner rather than disinherit any of your children.
- You can make sure there is (almost) no estate left. In other words, you can spend all your assets so that there is nothing left to inherit. However, in practice it is virtually impossible to get the timing of this approach right: what if everything has gone and you live for another 10 years? This method also disfavours any other heirs as you are leaving them nothing either. If you have one child, one solution might be to sell your home to a third party with a life annuity. This means you sell your home in return for a monthly annuity for as long as you live. In the meantime, you can stay in the property. This removes your house or apartment from your estate. Consequently, your only child will not inherit it. If you have two children, there is little point in selling the home for an annuity to the child you want to favour. That is because the tax authorities may treat this as a gift when they see a very low interest rate or sale price was used to favour the child. This approach also has disadvantages for the favoured child: they will get the property and the property will no longer be part of the estate, but it does come at a price.
- Finally, another radical solution is to move abroad. Inheritance law varies from country to country. As a Belgian resident, the forced portion of your estate is half. In some other countries this portion is higher and in other countries such as the UK there is no forced estate at all. Please note that you will effectively need to move house for this to work. Simply buying a second home abroad doesn't count, for example. You should therefore seek proper advice on the possible consequences of such a decision.
Finally, also think about the other heirs
Disinheriting a child can create a lot of tension and arguments between your next of kin. The disinherited child may take legal action. One way to anticipate this is to leave a clear motivation for the disfavoured child, for example by attaching a letter to the will. It is even better to have a conversation with the child you want to disinherit during your lifetime. This may reduce the chances of leaving your other heirs in a very complex situation. In any case, it is always advisable to call on the expertise of your notary. The notary can point out the possibilities and risks of your specific situation to you.