Disinheritance and the legitimate portion

As a default, children are the legal heirs of their parent(s). However, for a variety of reasons, it may not be desirable for a child to inherit from the parents. It can also be the case that a child has to deal with a parent that doesn’t want his/her inheritance to go to the child. A child may then be disinherited by the parent(s). However, absolute disinheritance of children is not possible in the Netherlands. A child is entitled to a so-called "legitimate portion" even if the child is disinherited. However, the child must then actively claim it. Below we will explain what this legitimate portion entails, what it consists of, and which parts of it require some extra attention.

Disinheriting children
If a parent wants to disinherit one of his/her children, it has to be included in the will of the parent. Does the disinherited child have children? Then they inherit in the child's place, unless that is also excluded through the will. 

Legitimate portion
Even though children can be disinherited, they retain the right to what is known as a "legitimate portion”. The legitimate portion is the legal portion of the estate to which children are entitled in any case after the death of one of their parents, regardless of what that parent had stipulated in his/her will. 

The legitimate portion is half of the legal inheritance. Within five years of the parent's death, the child must actively claim this legitimate portion. If the disinherited child does not take action, he or she will receive nothing from the estate. The disinherited child can also choose to accept the disinheritance and not appeal to the legitimate portion.

The legitimate portion only entitles the child to a monetary claim. Thus, a disinherited child cannot claim property. Also, a parent can stipulate in the will that a child who claims his legitimate portion will not receive it until the other parent has also died.

Calculation example
Suppose a family consists of a father, a mother and one child. The father dies. The legal inheritance of the mother and child is then 50% each. If the child is disinherited by the father, this child is therefore entitled to half of 50%, being 25% of the total inheritance through the legitimate portion. 

Extent of the legitimate portion
In principle, the legitimate portion is half of the legal inheritance and is based on the total value of the estate. However, certain gifts made by the parent while alive are also included in the calculation of how high the legitimate portion should be. The legislature has deemed this necessary to ensure that a disinherited child is protected.

Points of attention
You can see that the law has granted disinherited children a right to the legitimate portion, with certain safeguards, even though a parent can disinherit his/her child through the will. Are you unexpectedly dealing with the legitimate portion because you want to disinherit your child, or maybe because you were disinherited as a child yourself? The use of the legitimate portion is not simple. Don’t worry though, we are happy to assist you with legal advice and explanations of any tax consequences.