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·Home >> International Treaty on Inheritance

Wills and Successions in Europe
Add Date:2009-2-22      

BELGIQUE
Rapporteur
Prof. Dr. Alain Verbeke
Full Professor of Law at the Universities of Leuven,
Antwerp and Tilburg (the Netherlands);
Attorney-at-law,
Estate Planning Practice,
Laga & Philippe, Brussels

Comptence internationale
149
1st part
INTERNATIONAL JURISDICTION
Literature Part I C Part III : see enclosure
A. Sources
I. Traits internationaux
• Bilateral Convention between Belgium and France (8 July 1899, Belgian Act of 31
March 1900, Moniteur Belge 30-31 July 1900) (copy enclosed)
• Bilateral Convention between Belgium and the Netherlands (28 March 1925, Belgian
Act of 16 August 1926, Moniteur Belge 27 July 1929) (copy enclosed)
• Both remaining in force regarding succession and wills (see articles 69 and 70 of the EU
Resolution n 44/2001 keeping in force the bilateral conventions between regarding
subject matters not covered by the Resolution, such as succession and wills)
II. Sources nationales
• Articles 624, 635, 636, 638 Judicial Code
• Article 15 Civil Code
• Article 110 Civil Code
B. Chefs de comptence
C. Champ matriel dapplication
Internationalement comptent en matire successorale raison :
I. Du domicile du dfunt
YES C According to article 635.4 Judicial Code foreigners can be sued before a Belgian
court, either by a Belgian or by a foreigner, if the action concerns a succession that has fallen
open in Belgium. According to article 110 Civil Code, a succession falls open in Belgium if
the deceased has his last domicile in Belgium. In this case, the Belgian court will consider
itself competent, regardless of the nationality of the deceased or of the location of movable
assets. Regarding immovable property however, case law and some authors argue that the
Belgian court would only be competent for immovable property situated in Belgium (see
further).
The concept of domicile must be determined according to the lex fori. In this context
reference is not made to article 36 Judicial Code (place of registration in the population
Belgique
150
register) but to article 102 Civil Code defining the domicile as the principal establishment.
This obviously is a question of fact1.
The court is competent for actions enumerated in articles 627, 3 and 4 Judicial Code:
• Actions for distribution, and until such distribution, actions claiming the succession
(ptition dhrdit), and all actions between heirs and beneficiaries of a legacy,
• actions entered within two years after the moment of death, against the executor of a
will, by the beneficiaries of legacies or creditors against heirs;
• actions entered within two years after the distribution, for nullity of distribution.
A similar rule has been formulated in article 7 of the bilateral convention with France (1899).
III. Du domicile du dfendeur
According to articles 624, 1 and 635, 2, 10 Judicial Code an action can be introduced
before the judge of the domicile of the defendant or one of the defendants. On this basis an
action for liquidation or distribution of a succession can be introduced in a Belgian court if
one of the heirs, defendant in the case, has his domicile in Belgium. The Supreme Court
requires that there must be one single action with the same object towards each one of the
defendants2.
IV. De la nationalit du demandeur ou du dfendeur
Article 15 Civil Code states that a Belgian citizen can be sued before a Belgian court
regarding obligations engaged by him abroad, even towards a foreigner. This article can
justify competence for a Belgian court to judge liquidation and distribution of movables of a
succession fallen open abroad. It cannot serve as a basis for jurisdiction regarding immovable
property situated abroad.
Furthermore, the bilateral conventions with France (1899) and with the Netherlands (1925),
still in application for succession matters, do regulate the conflicts between French and
Belgian and Dutch and Belgian citizens. For French people in Belgium and vice versa, the
same jurisdiction rules apply as for citizens of the country itself. The same principle applies
for Dutch people. Article 1 3 of the convention with France explictly excludes the
application of article 15 Civil Code. The same is presumed to follow from article 1.1 of the
convention with the Netherlands3.
VI. De la situation des biens
As has been stated, international jurisdiction for a Belgian court is retained for actions
regarding immovable property situated in Belgium (article 635, 1 Judicial Code)4. Therefore,
the Belgian court is competent to order a partial distribution of immovable hereditary assets
situated in Belgium, being part of a succession that has fallen open abroad5.
1 Recent application: Court of first instance Ghent, 5 January 2001, Tijdschrift voor Gentse rechtspraak 2001, 84.
2 Cass. 5 June 1978, Pasicrisie 1978, I, 1143 with Annotation.
3 N. Watt, Les successions internationales. Rpertoire Notarial, Brussels, Larcier, 1992, n 276 (hereinafter cited as
Watt).
4 Cass. 10 January 1907, Pasicrisie 1907, I, 85.
5 Cass. 31 October 1968, Pasicrisie 1969, I, 227.
Comptence internationale
151
However, even if the deceaseds domicile is in Belgium, the Supreme Court has considered
the Belgian court incompetent regarding immovable property outside Belgium, e.g. to order
the distribution of such property6. There is indeed a clear tendency to limit the jurisdiction in
order to bring it in line with the conflict rules (Gleichlauf). An exception to this rule are the
principles laid down in some bilateral conventions, such as these with France and the
Netherlands.
Outside the scope of these conventions, some authors however argue that the forum
hereditatis-rule renders the Belgian court competent, also to judge about immovables abroad,
notwithstanding the application of conflict of law rules that might lead to foreign succession
law to be applied (see Part III)7. This implies that the Belgian judgement will need to be
recognized and executed abroad. The latter aspect is precisely the argument why the majority
opinion does not accept the Belgian courts competence in such a case and leaves it to the
forum of the country where the property is situated.
VIII. Dun accord entre les hritiers
Although it is possible for the heirs to make an agreement regarding the distribution of
immovables situated in different countries, it seems that competence must be retained for the
courts of all countries involved, where such distribution agreement must be executed8.
If both parties in a judicial action refer together to a Belgian court, that court will consider
itself competent.
IX. De mesures conservatoires prendre
Based on article 635, 5 Judicial Code the Belgian court will always be competent to order
provisional or conservatory measures regarding hereditary assets situated in Belgium, such as
putting the seals, making a notarial inventory or appointing a provisional administrator.
XI. Dun autre lment de rattachement
International jurisdiction of the Belgian courts can be based on the domicile of the plaintiff
being situated in Belgium (forum actoris), if there are no other grounds to bring a foreigner
before a Belgian court (articles 638 Judicial Code). However, the foreigner has a right to
reject (in limine litis) the Belgian jurisdiction, under the condition of reciprocity for a Belgian
defendant to do the same in the country of that foreigner (article 636 Judicial Code). Article
1.2 of the bilateral convention with the Netherlands (1925) excludes the application of article
638 Judicial Code.
International jurisdiction of a Belgian court will also be accepted if the defendant has
organised his defence on the merits of the case, without invoking the incompetence of the
court.
6 Cass. 31 October 1968, cited above.
7 G. Vanhecke & K. Lenaerts, Internationaal Privaatrecht, Brussels, 1989; second edition, n 635-636 (hereinafter
cited as Vanhecke & Lenaerts).
8 L.F. Ganshof, Les conflits de jurisdictions en matire successorale en droit international priv belge, note sous
Civ. Gand, 16 June 1970, Revue Critique de Jurisprudence Belge 1972, 450.
Belgique
152
D.Vrification de la comptence
I. Le tribunal peut-il se dclarer doffice incomptent ?
No (see further under E)
II. Le tribunal comptent au regard des rgles en vigueur peut-il se dclarer incomptent
au profit dun tribunal dun autre Etat plus appropri ?
No
III. La comptence internationale des tribunaux est-elle affecte par lexclusivit de
comptence revendique par le droit dun autre Etat ?
No (see however under E, in application of the bilateral convention with France of 1899)
IV. Le tribunal peut-il statuer si le dfendeur ne comparaît pas ?
Yes C However, in application of article 636 Judicial Code, the foreign defendant who is not
appearing in court is presumed to reject the jurisdiction of the Belgian court. Therefore, in that
particular situation of article 636, the court will consider itself incompetent.
E. Litispendance et connexit
The problem of a multitude of procedures that might lead to contradictory decisions is solved by the
principle of litispendance imposing that parallel procedures must be concentrated in one court. In
the internal law of civil procedure, connexity is regulated in article 30 Judicial Code, leaving it to
the discretionary appreciation of the judge. An extreme form of connexity is litispendance, as
defined in article 29 Judicial Code. The material competence regarding litispendance is regulated by
articles 565-566 Judicial Code. These rules also determine the territorial jurisdiction for questions
of litispendance (article 634 Judicial Code).
In international cases, except international conventions deciding otherwise, a Belgian court must
treat a case pending, even if the same issue is already pending before a foreign court9. Therefore,
there is no socalled exception of litispendance rendering the Belgian court incompetent.
Such exception is formulated in article 7 of the convention of 1899 with France. The rule only
applies to citizens domiciled in Belgium or France and to assets situated in Belgium or France. The
court of the deceaseds domicile has exclusive jurisdiction for the actions enumerated exhaustively
in the first paragraph (corresponding with article 627, 3 and 4 Judicial Code: see above). 2 of
article 7 submits the actions brought before a Belgian court to the time limits enumerated in article
627, 3 and 4 Judicial Code (see above). The domicile court is solely competent, regardless of the
movable or immovable character of the assets. Thus, a unity of jurisdiction is achieved, since the
Belgian court will be exclusively competent, even regarding immovable property in France10.
Therefore, a Belgian court will be incompetent to decide about the delivery of a legacy regarding
immovable property in Belgium, belonging to a succession that fell open in France11. It is disputed
whether the court must invoke its incompetence automatically. The court of first instance of
9 Vanhecke & Lenaerts, n 54.
10 Recent application: Court of first instance Brussels, 17 December 1998, Journal des Tribunaux 1999, 608.
11 Court of Appeal Lige, 9 May 1923, Pasicrisie 1923, I, 135.
Comptence internationale
153
Brussels did not feel obliged to do so, and considered itself competent, in spite of article 7, since the
exception was not raised by the parties12.
12 Court of first instance Brussels 15 May 1974, Revue du Notariat Belge 1976, 203, Annotation Watt.
Belgique
154
2nd part
RECOGNITION & EXECUTION OF DECISIONS
A. Sources
I. Traits internationaux
• Bilateral Convention between Belgium and France (8 July 1899, Belgian Act of 31
March 1900, Moniteur Belge 30-31 July 1900) and Bilateral Convention between
Belgium and the Netherlands (28 March 1925, Belgian Act of 16 August 1926,
Moniteur Belge 27 July 1929) (see Part I)
• Several other bilateral Conventions: see copy enclosed
II. Sources nationales
• Article 570 Judicial Code
• Article 586 Judicial Code
• Article 976, 999 Civil Code
B. Jugements trangers
I. Les dcisions trangres en matire successorale sont-elles reconnues de plein droit ou
leur reconnaissance est-elle subordonne une procdure de vrification a priori?
Foreign judgements first of all have an effet de fait, meaning that they are accepted as a
legal fact that must be taken into account.
Seconldy, the effet de titre implies that the foreign judgement is accepted as an authentic
act, giving authentic value to certain facts that have been confirmed by the foreign judge, such
as a witnessing or a confession. This force probante of a judgement is accepted if an
expedition is delivered of the judgement, meeting the requirements of authenticity of the
country where it has been rendered. If there is no exemption in a bilateral convention or
treaty, it is required that the signature of the foreign official is legalised by a Belgian consul in
the country concerned. For states that are party to the Hague Convention of 5 October 1961,
the two-phased legalisation procedure is replaced by an apostille to be given by an authority
in the country concerned. Furthermore, there is no legalisation or apostille requirement
whatsoever for public acts (including judgements and notarial deeds) from France, Italy,
Denmark and Ireland1.
Thirdly, a foreign judgement may be recognised if it meets the conditions enumerated in
article 570 Judicial Code, notwithstanding conventions or treaties deciding otherwise. In
matters of status and capacity, a recognition de plano is granted, which means that no
1 Act of 27 November 1996, introducing the EC Convention of 25 May 1987, Moniteur belge 18 April 1997.
Reconnaissance et excution des dcisions
155
preliminary procedure is necessary to have the foreign judgement recognised. This however
does not mean that no preliminary investigation would be needed. Any public officer, notary
or functionary of the government or the administration is obliged to verify the requirements of
article 570 Judicial Code. Any interested party can bring an action for recognition before the
judge, who will apply article 570 without getting into the merits of the case itself2.
A recognition de plano seems to be limited to judgements concerning status and capacity and
is therefore not applicable to judgements in succession matters3. Here a preliminary
exequatur procedure requesting recognition of the judgement by the court is needed. The
same article 570 Judicial Code applies but the judge will also look at the merits of the case
(rvision au fond)4 (see further under II). This does not apply if a bilateral convention is
applicable. Then the judgement of such a country will be recognised de plano, without a
preliminary exequatur procedure to be applied, also in succession matters.
The enforceability or execution of a foreign judgment is only possible if the exequatur
procedure has been followed. The requirements are identical as in case of recognition of the
judgement. Even if bilateral conventions do apply, for execution the exequatur procedure will
be required.
II. La vrification de la dcision trangre porte-t-elle sur
a) sur la comptence du tribunal tranger?
b) sur la loi applique par le tribunal tranger?
c) sur lordre public.
The exequatur procedure, applicable as a preliminary requirement, in principle, for both
recognition and execution of a foreign judgement in succession matters, is laid down in article
570 Judicial code. Besides the rvision au fond, the Belgian judge has to examine if:
• the foreign judgement does not contain any elements contrary to the internal public
order or rules of Belgian public law;
• the rights of defence were respected;
• the competence of the foreign judge was not based exclusively on the nationality of the
plaintiff;
• the judgement is final according to the law of the country where it has been rendered;
• the authenticated copy of the judgement meets the conditions of authenticity as required
by the law of the country where the judgement was rendered.
The rvision au fond requires the judge to verify if the foreign court did not make a
mistake, in fact or in law. However, he may not repeat the litigation, modify the judgement,
nor put himself in the place of the foreign judge.
In case of a recognition de plano, without a preliminary procedure, no rvision au fond will
apply. Such recognition applies in matters of status and capacity or in case a bilateral
2 It has been decided long ago that no rvision au fond is to be applied in matters of status and capacity: Cass. 19
January 1882, Pasicrisie 1882, I, 36.
3 Although some authors have argued that the de plano recognition should be broader (Vanhecke & Lenaerts, n 144).
4 Cass. 23 January 1981, Pasicrisie 1981, I, 547.
Belgique
156
convention is applicable. Any Belgian official will, incidentally, analyse the foreign
judgement on its conformity with the requirements of the convention, such as respect for
public order, respect for rights of defence and the competence of the foreign judge.
III. Existe-t-il un rgime particulier de reconnaissance et dexcution des dcisions
gracieuses et administratives? Dans laffirmative, donnez des exemples.
Judgements of a foreign arbitral court may be recognised and executed according to articles
1719-1723 Judicial Code. In case of arbitration, some treaties do apply (New York, 10 June
1958; European Treaty 21 April 1961; and several bilateral conventions).
Other foreign authentic acts are recognised and executed according to article 586 Judicial
Code, and the rules laid down in bilateral and other conventions. Article 586 states in its third
section that authentic acts other than those concerning mortgages on immovable property, can
only be executed in case of a convention regarding such execution.
C. Autres actes
I. Testaments faits ltranger.
1. Existe-t-il une procdure de vrification des testaments trangers?
2. Des distinctions sont-elles faites cet gard selon la forme du testament?
Hague Convention 1961
According to article 999 BCC a Belgian citizen can make a will abroad, in the form of an
holograph will (as determined in article 970 BCC) or by authentic act according to the
formalities used at the place of making such act, or following international conventions in this
respect.
Belgium has ratified the Hague Convention of 5 October 1961 on conflicts of law regarding
the form of wills. Therefore, Belgium recognises wills drafted in accordance with the
legislation:
a) of the country of the testators nationality at the moment of the making of the will or at
the moment of his death;
b) of the country of the testators domicile at the moment of the making of the will or at
the moment of his death;
c) of the country where the testator makes the will;
d) of the country where the testator had his habitual residence at the moment of the making
of his will or at the moment of his death;
e) for immovable property: of the country where such immovable property is situated.
Since there is no reciprocity requirement (article 6), the country concerned need not be a party
to the Hague Convention. According to article 10 of the Convention, Belgium has made a
reservation for the recognition of a will that is merely oral, if made by a Belgian citizen with
no other nationality, besides exceptional circumstances.
Article 4 allowing wills to be made by two or more persones in one single act is not in
contradiction with article 968 BCCs prohobition on joint wills. The rule of article 4 concerns
Reconnaissance et excution des dcisions
157
the form of the will, while article 968 is a material requirement in order to protect the
revocability of the will5.
Formalities for holograph and international wills
All holograph and international wills (according to the Treaty of Washington 1973) must be
presented to a notary who will apply the procedure of article 976 BCC. The notary opens the
will and makes a notarial act of such opening and the situation of the will. Together with such
act, the will is classified under the notarys official acts. Within one month of such opening,
the notary must deposit a copy conform of the will and the act of opening at the court of first
instance where the succession fell open. If the succession fell open abroad, this must be done
at the court of first instance of the notarys professional domicile. These formalities do not
only apply to Belgian wills, but to all wills, even foreign, found and used in Belgium.
Article 1008 BCC requires the universal legatee appointed in a holograph or international
will, in the absence of forced heirs, to receive delivery of his legacy (i.e. to be put in
possession) by an order of the president of the court of first instance of the place where the
succession fell open. If there would be forced heirs, he would have to ask delivery to them
(since they have the saisine) (see article 1004 BCC). If he would be appointed in a public will,
in the absence of forced heirs, he would have saisine by virtue of law (see article 1006 BCC).
The question rises whether such order of the court is also required for a universal legatee
apointed by foreign will. Although some controversy exists, it is reasonable to accept that
such control would not be needed if the legatee can sufficiently prove his rights. The ratio
legis of article 1008 is to control the sincerity of the document and the identity of the person
claiming rights. If the legatee has a document proving his rights, such as a foreign certificate
of inheritance or a grant of probate delivered by a Probate Court, the procedure of article 1008
BCC would not be applicable.
Formalities for public or notarial wills
Wills drafted in the form of a notary act (public will) do not fall under the procedure of article
976 BCC. An authentic testament passed before a Belgian notary must be registered within
four months after death (article 32 Code of Registration Taxes), and has executory force as
any other authentic act.
A foreign will shall be accepted as a public will if it has been made by a foreign notary, in a
country knowing the latin notary system (cf. Union du Notariat Latin). This is not the case for
Anglo-American public notaries, who might have certified the signature of the testator. Such
act cannot qualify as a public will. Therefore the procedure of article 976 BCC must be
applied.
The foreign public will with executory force in its country of origin should be recognised as
such in Belgium. There is no problem if there is a bilateral convention (compare article 16 of
the convention of 1899 with France). In the absence, one falls into the general rule of article
586 BCC (see above). In practice, the Belgian notary uses a certified copy of the foreign will
or he deposits a copy of the foreign will under his authentic acts, and then makes on that basis
the attestations that are needed6.
5 H. Jacbos, Rpertoire Notarial, Les testaments (forme), Brussels, Larcier, n 296.
6 Watt, n 214.
Belgique
158
II. Actes tablissant la qualit dhritier
See above.
D. Question commune aux jugements et autres actes
La production dun jugement tranger, dun testament fait ltranger, dun acte tablissant la
qualit dhritier ou encore dun acte tranger de partage suffit-elle :
I. pour obtenir la modification des registres de proprit?
Transcriptions in the mortgage register of immovable property can only be made based on
authentic documents and for causes of transition regulated in article 1 of the Mortgage Act7.
These are acts inter vivos regarding transfer or determination of immovable rights,
determination or change of rights of usufruct etc., as well as lease contracts for periods of
more than nine years. Acts mortis causa, such as wills, must and cannot be registered8.
Obviously, notarial acts on distribution of a succession, including immovable property, must
be registered.
In principle, foreign authentic acts are deposited with a Belgian notary, who makes an act of
depot, which is then registered. However, based on the recognition rules of foreign notary
acts, it seems that mortgage registrars could also accept transcription of such foreign notary
acts.
II. pour obtenir dun dpositaire, p.ex. un banquier, remise des fonds ou autres biens
dpendant de la succession?
Banks will not release the accounts of a deceased unless they have received an akte van
bekendheid/acte de notorit or more often, a notarial declaration of devolution, drafted by a
notary in which the latter states the identity of the deceased, the devolution and the identity of
the heirs and their shares. If the notarial declaration is foreign, it will be recognised according
to the rules described above.
Moreover, upon death of a Belgian resident, banks and financial institutions have a double
duty: one of information and one of temporary blocking of funds9. First of all the tax
authorities must be informed about the existence of bank accounts, effects, bank safes (articles
96-101 Inheritance Tax Code). Upon death, bank safes must be sealed. Before opening such
bank safe, the tax authorities must be informed by registered mail four days in advance in
order to give them the opportunity to be present at such opening. An inventory of the content
of the safe must then be made.
The second duty is one of refusing to release the funds or effects if they belong, even
partially, to heirs or beneficiaries domiciled abroad (article 95 Inheritance Tax Code). This
duty to block lasts as long as such heir or beneficiary has not delivered guaranty for payment
of succession taxes (article 94 Inheritance Tax Code), unless a certificate of the tax authorities
is delivered.
7 See A. Verbeke & J. Byttebier, Onroerende en hypothecaire publiciteit, in Goed onroerend informeren, Bruges,
Die Keure, 2001, 105-163.
8 One exception is article 1069 BCC.
9 See H. Casman, De bank en het overlijden van de cliënt, in Actuele ontwikkelingen in de rechtsverhouding tussen
bank en consument, Antwerp, Maklu, 1994, 129-131.
Reconnaissance et excution des dcisions
159
Insurance companies established in Belgium are under a legal obligation to notify the tax
authorities of any insurance contract regarding tangible movable assets, concluded by the
deceased and/or his spouse (article 103/1 Inheritance Tax Code).
Belgique
160
3rd part
CONFLICT OF LAWS
A. Littrature
See enclosed list
B. Traits internationaux
I. Quels sont les traits internationaux que la Belgique a ratifis et quels sont les traits
dj signs ?
a) Convention de la Haye 1er août 1989 sur la loi applicable aux successions cause de
mort :
Not operative yet.
Not signed by Belgium.
b) Convention de la Haye du 5 octobre 1961 sur les conflits de lois en matire de forme des
dispositions testamentaires
Belgian Act of 29 July 1971, Moniteur belge 29 December 1971.
Operative in Belgium since 19 December 1971
c) Convention de la Haye du 2 octobre 1973 sur ladministration internationale des
successions
Not signed nor ratified by Belgium.
d) Convention de la Haye du 1er juillet 1985 relative la loi applicable au trust et sa
reconnaissance
Not signed nor ratified by Belgium.
e) Convention de Washington du 26 octobre 1973 portant loi uniforme sur la forme dun
testament
Belgian Act of 11 January 1983, Moniteur belge 11 October 1983.
Operative in Belgium since 21 October 1983.
f) Convention de Bâle du 16 mai 1972 relative ltablissement dun systme dinscription
des testaments
Belgian Act of 13 January 1977, Moniteur belge 6 May 1977.
Operative in Belgium since 9 May 1977.
g) Convention de la Haye du 14 mars 1978 sur la loi applicable aux rgimes matrimoniaux
Not signed nor ratified by Belgium.
Droit international priv
161
h) Benelux Convention and Annex on Commorientes, Brussels 29 December 1972
Belgian Act of 19 September 1977, Moniteur belge 10 January 1978.
Operative in Belgium since 1 September 1978, Moniteur belge 28 september 1978.
Integrated in the BCC as articles 721-722.
II. Traits bilatraux avec des Etats europens
See above and see enclosure indicating several bilateral conventions
C. Les rgles nationales de conflits de lois en matire successorale
I. Sources du droit
• Article 3 Civil Code
• Case law and doctrine
II. Rattachement objectif de la dvolution successorale lgale et testamentaire
1. La succession intgrale est-elle dvolue sur la base dun seul ordre juridique ou est-ce
que, pour la dvolution successorale, il faut faire la diffrence entre les biens meubles et
les biens immeubles ?
Intestate succession
The Belgian conflict rule is a disiunctive rule, not leading to unity of succession. The lex
successionis governing the intestate succession differs according to the character of the
hereditary assets.
(1) The law of the last domicile" of the deceased governs succession to movable property
anywhere in the world1. The Benelux Treaty of 11 May 1951 determining the law of the
nationality of the deceased as criterium has never entered into force.
(2) The law of the place of physical location, the lex rei sitae, governs succession to
immovable property.
The qualification of assets as immovable or movable is determined according to the lex fori.
However, there is a strong tendency to require that the lex rei sitae should at least be
consulted.
The concept of domicile is determined according to the lex fori, in our case article 102 Civil
Code (see Part I). It is the place of ones principal establishment at the time of death. A
special problem arises for diplomats and officials of various international organisations
working in Belgium. Unless they have the Belgian nationality, diplomats will be considered to
have maintained their domicile abroad, insofar as they were not domiciled in Belgium before
they were posted to Belgium. Members of permanent delegations with the Council of NATO
and with the EU, as well as certain high officials in NATO, the Belgian-Luxembourg
Economic Union, the OECD, and the International Cotton Institute have diplomatic status as
1 Recent application: Court of Appeal Brussels, 21 October 1998, Rechtskundig Weekblad 1999-2000, 645.
Belgique
162
well. Members of foreign consulates, have a similar status insofar as they do not pursue any
commercial activities in Belgium2.
There may be as many succession masses as there is immovable property in different
countries. On each of these masses, the applicable succession law must be applied. However,
renvoi should be taken into account (see further).
Testate succession
1. The intestate lex successionis determines to what extent a valid will may have effect.
Highly important in this respect are the forced heirship (or legitim)-rules. The capacity
to make a will, the consent of the testator and the form of the will may be governed by
other laws than the lex successionis (see further).
2. not applicable
3. not applicable
4. Rgles spciales pour des questions juridiques dtermines
a) la capacit de tester
The general capacity to dispose of assets is determined according to the law of the
nationality (article 3 alinea 3 Civil Code). This nationality must be determined at the
moment of the making of the will. A later change of nationality will not affect such
capacity. A minority view is of the opinion that the rule of article 904 Civil Code
regarding capacity to make a will for minors, is to be governed by the lex successionis.
It should be noted that the general capacity to receive a gift is equally determined by the
law of the nationality. However, there are some particular situations of incapacity to
receive a gift (such as a guardian from his pupil or a doctor from his patient: see articles
907, 909, 997 Civil Code). Here a controversy exists between the lex successionis, the
law of the nationality, a cumulation of these law, or the accessory rule applying the law
governing the institution from which the incapacity follows3.
b) testaments rdigs par plusieurs personnes sous la forme dun acte
Regarding the form of such will, it may be valid if the will has been made according to
a legislation in conformity with the Hague Convention 1961. As to the content, this is to
be determined according to the lex successionis. Materially, Belgian law forbids joint
wills (article 968 BCC) as a violation of the principle of revocability of wills (see Part
IV).
c) contrats dtablissement de dvolution successorale ou renonciation
This is to be determined by the lex successionis. Except for some limited explicit
exceptions regulated by law, under Belgian material law, contracts regarding a
succession are invalid (see part IV).
d) validit rdaction de testament
The validity of the consent of the testator and possible lack of free consent is to be
determined according to the lex successionis. Some authors however have defended the
2 T.J. Lyons, Capital Taxes and Estate Planning in Europe, London, Sweet & Maxwell, loose-leaf, 128, n 59.
3 See Watt, n 25.
Droit international priv
163
view that the law of the nationality at the moment of making the will should govern this
question4.
III. Rattachement subjectif
1. Le droit successoral faisant foi dans votre Etat est-il dtermin exclusivement par des
rgles de rattachement objectifs ou est-ce que la loi ou la jurisprudence admet le choix
du droit successoral faisant foi?
There is no possibility to make a choice for a subjective lex successionis. This means that
such a choice would not be binding, and not be accepted as setting aside imperative rules of
the lex successionis. However, suppletive rules could be set aside by a choice of law.
2. Not applicable
3. Dans le cas de linadmissibilit dun choix du droit
a) le choix du droit fait-il lobjet de projets lgislatifs ou lintroduction du choix est-elle
prône dans la littrature? No
b) Quelles sont les raisons pour lintroduction ou le refus dun choix de droit?
Probably the strong attachment to forced heirship rules in Belgian law. Choice of the lex
successionis would be a simple way to circumvene this protection, considered by some
to be of public order.
IV. Plusieurs ordres juridiques applicables en mme temps
The different succession masses are governed by the different succession laws (see above). If
upon death of a Belgian resident, the deceased leaves immovable property abroad, foreign
succession law applies for the succession of such immovable property. Forced heirship
(legitim) rules must be applied to each one of the succession masses.
If in one country, there are no forced heirship rules, on that succession mass, heirs, even of a
deceased of Belgian nationality with last domicile in Belgian, will not have a forced heirship.
A correction to this rule is the droit de prlvement of article 912 BCC (see infra V and also
Part IV)
It is on the other hand also possible for a heir with legitim to receive in each of the different
masses protected shares that are in sum larger than if he would have had a forced heirship
under one single law5.
V. Compensation dans le cas de rgles diffrentes dun autre droit applicable au lieu de la
situation des biens.
Article 912 BCC provides that in case of division of an estate comprising assets situated
outside Belgium, co-heirs who are not nationals of that foreign State may levy against all
assets in Belgium, of whatever kind, a portion equal to that proportion of the assets in that
country from which they would be excluded, on whatever grounds, by virtue of local laws and
4 P.F. Ghorain, Rapport belge, in Rgimes matrimoniaux, successions et libralits. Droit international priv et droit
compar, Tome I, Neuchâtel, Ed. De la Baconnire, 1979, n 117; M. Verwilghen, Les lois applicables aux
successions internationales, in Jhrite ltranger, Brussels, KFBN, 1984, n 128.
5 Watt, n 207.
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customs. This privilege may be invoked by Belgians and foreigners alike, except persons who
have the nationality of the particular foreign country.
This special regime does not seem to be applied frequently in practice6.
VI. La dvolution successorale et le rgime matrimonial.
To decide which law determines the matrimonial property regime of an individuals property,
a distinction must be made:
a) If both spouses have the same nationality, the applicable law will be the common
national law of the spouses.
b) If both spouses do not have the same nationality, Belgian law determines the applicable
law by reference to the first stable matrimonial residence of the spouses.
The conflict rules for matrimonial property and for succession law are not coordinated and
very often lead to the application of different material laws. In this regard, it should be kept in
mind that matrimonial property law comes first. Suppose two Dutch citizens domiciled in
Belgium, with no marital contract. Upon death of the husband, the Dutch total community
property will govern the matrimonial property issue. Half of the common estate, being the
succession of the deceased, will then devolve according to Belgian succession law.
Obviously, this situation may lead to a double protection as well as a total absence of
protection. Some authors argue that in such case the judge should have the possibility to
correct the situation based on the theory of adaptation7
VII. Le rattachement de la forme de testaments et dautres dispositions pour cause de mort
See Part II regarding the Hague Convention of 5 October 1961.
VIII. Ordre public successoral
The Belgian Cour De Cassation established the definition of international public policy in a
judgement of 4 May 1950 (Pasicrisie 1950, I, 624): A law of internal public policy (ordre
public) is only one of international public policy to the extent that the legislator has intended
to create, by the provisions of that law, a principle which is considered essential to the
established moral, political or economic order.
In general it is accepted that the exception of international public policy can be an obstacle to
the normal application of the designated foreign law. Since public policy is a concept that
varies in time and space it is impossible to determine what foreign law is considered
incompatible with Belgian international public policy. In any case, before the exception of
international public policy can be invoked, the following must apply:
a) There must be a serious incompatibility of the foreign law with the essential principles
of Belgian law;
b) The effects claimed in Belgium by the application of the foreign law must be
"aggressive" from the point of view of the lex fori;
6 Recent application: Court of first instance Arlon, 21 December 2000, Revue du Notariat Belge 2001, 325, annotation
Bouckaert.
7 Rigaux, I, n 474; Watt, n 100.
Droit international priv
165
c) the succession link to Belgium must be sufficiently strong to justify the eviction of the
foreign law.
Les rgles suivantes dun droit tranger seraient-elles acceptes par le droit de votre Etat ?
If the answer to the question is no, it means that the exception of international public policy
could be invoked.
a) parts successorales diffrentes pour les hritiers masculins et les hritiers fminins :
No
b) interdiction dhriter pour les enfants naturels
No
c) droit successoral lgal des concubins ou des partenaires homosexuels
Yes
d) refus daccorder un droit la part rservataire
Yes
e) limitations lgales ou contractuelles de la libert de tester
Yes
f) force probante de testaments et de pactes successoraux
Yes
g) renonciation des hritiers lgaux du dfunt de leur vivant avec force obligatoire
Yes
h) dispositions testamentaires du dfunt avec effets discriminatoires
Probably, if the reserved portions are respected.
i) dautres exemples
Other discriminatory rules that would not be accepted, include age, race, religion.
Not accepted would be a foreign rule declaring a succession has fallen open as a
consequence of a penal conviction of an individual. The institution of « mort civil » has
been abolished in the 19th century.
Succession rights for a spouse based on a polygamic marriage validly concluded abroad,
probably would be accepted.
IX. Renvoi et rattachement subordonn
In general, Belgian law accepts the application of renvoi in the first degree in matters of
personal status, succession law and matrimonial property. This means that if the foreign
conflict rules referred to by the Belgian conflict rules lead back to Belgian law, then Belgian
material law will be applied. There is almost no case law. However, the mechanism is often
used in Belgian notarial practice, as much for succession to movables as to immovables.
Application of renvoi sometimes enables one to have resort to a single law controlling the
whole succession.
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A classic example is the death of a Belgian citizen leaving immovable property in Spain. The
Spanish conflicts rule (for the immovable property) referring to the nationality of the
deceased, is accepted as referring back to Belgian succession law, in order to apply one
succession law, both to the movable as to the immovable assets8.
X. Rattachement de questions pralables
Determining the conflict rule for preliminary questions is subject to controverse in Belgium9,
at least among commentators. There is almost no case law. There seems to exist some
preference for an autonomous attachment based on the lex fori10.
XI. Porte du rattachement en matire successorale
Causes
The lex successionis governs the causes for a succession to fall open. In principle this is
following death. Other causes might run against international public order (see above).
A controversy exists regarding rules on missing persons: some apply the lex successionis,
others the national law of the missing person.
The succession falls open upon death, which may cause some problems in case of death in
accidents or disasters. The Benelux Convention of 29 december 1972 creates the presumption
of simultaneous death if the order of dying cannot be established. The issue should be settled
by the national laws of the heirs in question, and subsidiary in case of contradiction. by the lex
fori.
Rules of indignity are in principle governed by the lex successionis.
Intestate
The lex successionis determines the intestate devolution. This includes the technique of
devolution, indicating who are the heirs and in what order, rules on representation, limitation
of degree, the extent of heirship, the nature of the heirship rights, the rules on forced heirship,
the rules regarding anomal successions.
The lien of filiation is determined by the national law. This different rule for issues
concerning the personal status could raise some difficulties when concepts or notions are used
that are unknown in the lex successionis. Then, one has to fit in the relevant concept of the
personal law into the applicable succession law.
Testate
As indicated, the lex successionis also determines the testate devolution: that law decides to
what extent the intestate devolution can be set aside by the personal wishes of the deceased as
made up in a will (or gift or donation). The nature of a legacy, universal or at a specific title,
is determined according to the lex successionis. The same goes for delivery of a legacy and its
eventual caducity.
8 Court of Appeal Antwerp, 22 April 1986, RGEN 1987, n 24318, 70.
9 Watt, n 92.
10 Vanhecke & Lenaerts, n 322.
Droit international priv
167
As has been said, it is also the lex successionis that will tell us where the margins or limits of
free disposition are to be put: who can claim a forced heirship, to what extent and of what is
the nature of such a protected right?
Transmission of possession and administration
According to the majority opinion it is the lex successionis which determines the law
applicable to transmission of possession and administration. Issues are the option for heirs to
accept or renounce, the formalities for possession, and for transferring assets, power of
testamentory executor, powers of administration, liability for debts, powers of liquidation.
The option for a heir to accept or not, the time lapse and formalities prescribed for such
option, the consent or lack of consent in making the choice, the consequences of such option,
all of it is determined by the lex successionis. But the capacity whether or not a person can
accept, and eventual formalities or conditions as for minors, is determined by his national law
(being a question of status C article 3 alinea 3 BCC).
As far as transmission of possession and administration of immovable property is concerned,
succession law and the law of the location of the assets coincide. The latter will determine
where saisine is conferred and will designate, where necessary, the persons who can intervene
to administer the immovable property.
Transmission of possession and administration of movable property is subject to the law of
the last "domicile" of the deceased. If a foreign law is applicable and by that law a foreign
administrator is appointed, this administrator will be allowed to take possession of movable
assets situated in Belgium to the extent that his appointment is recognised as valid in
Belgium. If required by the lex successionis, the Belgian court will issue an order for
possession (envoi en possession) (see above). The administrator or executor will however
need to follow the exequatur procedure if he wants to engage in acts of execution towards
hereditary assets, e.g. to claim delivery of assets held by an heir.
Issues of distribution of the estate (partage) are in principle governed by the lex successionis.
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4th part
APERCU DU DROIT INTERNE SUCCESSORAL
A. Sources et littrature
I. Les Sources du droit
• Articles 718-1100 BCC
Littrature et Jurisprudence
• Selected general bibliography:
• Dekkers, R, Handboek Burgerlijk Recht, III. Huwelijksstelsels, Erfrecht, Giften, 2nd
edn, Brussels, 1971;
• De Page, H, Trait lmentaire de droit civil belge, IX. Les successions, 2nd edn,
Brussels, 1974;
• Dillemans, R, Erfrecht, Brussels, 1984 and Testamenten, Brussels, 1977;
• Kluyskens, A., Beginselen van Burgerlijk Recht, Tome II, III and VIII, De erfenissen C
De schenkingen en testamenten C Het huwelijkscontract, Standaard boekhandel, fifth
edition 1954-1955;
• Puelinckx-Coene, M, Erfrecht, 2nd edn, Antwerp, 1996;
• Raucent, L; Les Successions, 2nd edn, Brussels/Louvain-la-Neuve, 1988 and Les
Libralits, 2nd edn, Brussels/Louvain-la-Neuve, 1991;
• Verbeke, A and Leleu, Y-H, "Harmonization of the Law of Succession in Europe" in
Towards a European Civil Code II, 1998;
• Verbeke, A., Belgium, in Hayton (ed.), European Succession Laws, Bristol, Jordans,
1998, 2d edition, 35-64;
• Verbeke, A. & van Zantbeek, A., Belgium, in Hayton (ed.), European Succession
Laws, Bristol, Jordans, 2002, 3d edition, to appear;
• Verbeke, A., Belgisch Blutrecht, Fiscaal Tijdschrift Vermogen 2001/11.
• Verbeke, A., Belgisch Weibenrecht, Fiscaal Tijdschrift Vermogen 2001/12.
• Verbeke, A., Belgisch testamentair erfrecht, Fiscaal Tijdschrift Vermogen 2002/1.
• Verbeke, A., Belgisch reservatair erfrecht, Fiscaal Tijdschrift Vermogen 2002/2.
• Verbeke, A., De legitieme ontbloot of dood? Leve de echtgenoot!, Tijdschrift voor
Privaatrecht 2000, 1111-1236, with summaries in English, French, German and
Spanish; second revised edition under de same title as book in the series Ars Notariatus,
Kluwer, Deventer, 2002, to appear.
• Commentaar Erfenissen, Schenkingen en Testamenten, Antwerp: Kluwer, loose-leaf;
Aperçu du droit interne successoral
169
• Rpertoire Notarial, Brussels: Larcier, loose-leaf.
• Examen critique de la rserve successorale, Brussels, Bruylant, Tome I and II, 1997,
Tome III, 2000
• See also the regularly updated and very substantial case-law chronicles in such law
journals as Tijdschrift voor Privaatrecht, Revue Critique de Jurisprudence Belge and
Journal des Tribunaux.
Adde for marital property law:
• Casman, H, Huwelijksvermogensstels, Antwerp: Kluwer, loose-leaf;
• Gerlo, J, Handboek Huwelijksvermogensrecht, 4th edition, Bruges, Die Keure, 2001;
• Raucent, L, Les Rgimes Matrimoniaux, 3rd edn, Brussels/Louvain-la-Neuve, 1988;
• Verbeke, A., Goederenverdeling bij echtscheiding, Antwerp, Maklu, second edition,
1994, with summary in English
• Verbeke, A, (general reporter) and Cretney, Grauers, Malaurie, Ofner, Savolainen,
Skorini-Paparrigopoulou, van der Burght, "European Property Law Survey 1988-1994",
European Review of Private Law, 1995, pp 445-482.
• Verbeke, A., Le contrat de mariage de sparation de biens, Antwerp, Kluwer, 1997
B. La dvolution successorale lgale
I. Le droit successoral de la parent
Only persons who are blood relatives of the deceased, living at the time of death, may inherit,
if there is no will. The only exception is the surviving spouse, who is a legitimate heir even
although not blood related.
The blood relatives may be divided into three lines:
(1) the descending line (the children and their issue);
(2) the ascending line:
• the privileged ascendants (the parents);
• the ordinary ascendants (the grandparents and their ancestors);
(3) the collateral line:
• the privileged collaterals (the brothers and sisters of the deceased and their issue);
• the ordinary collaterals (the brothers and sisters of the deceased's parents and their
issue).
To determine who of these blood relatives may inherit, it is necessary to establish first the
category and, secondly, the degree within the category.
Category
A category is a group of blood relatives. Four categories exist:
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(1) The first category of descendants (all the children or descendants of the deceased,
whether legitimate, natural or adopted, have the same rights to inherit).
(2) The second category of privileged collaterals and privileged ascendants (parents) if they
come up with privileged collaterals.
(3) The third category of ascendants (including parents if there are no privileged
collaterals).
(4) The fourth category of ordinary collaterals
Degree
Articles 737 and 738 BCC determine the method of calculating the degree of proximity.
When considering the direct line, there are as many degrees as there are generations of
persons. In the collateral line degrees are counted by reference to the number of generations
from the deceased up to but not including the common ancestor, and from the latter down to
the other relatives.
The deceased is related in the first degree towards his parents and his children; in the second
degree towards his grandparents, grandchildren, brothers and sisters; and in the third degree
towards his great-grandparents, great-grandchildren, uncles and aunts.
The inheritance rights of the ordinary collaterals are restricted to the fourth degree, except
where relatives at a further degree inherit by representation (article 755 BCC). There is no
restriction by degree in the other categories of heirs.
Devolution
To determine the hereditary rights of blood relatives, it is necessary to look first at the
categories. Heirs who are members of the first category exclude all others. Heirs from the
second category exclude members of the third and fourth category, and so on. However, the
technique of splitting will correct this basic rule in some cases.
Secondly, to determine the rights between the heirs in the same category, the degree will be
decisive. The nearest degree will exclude all other heirs who are in a further degree related to
the deceased. Here, the technique of representation will operate as a correction.
In the second category, some special rules apply in favour of parents. If two parents are
coming up with brothers and sisters, each parent gets one quarter and the other half is shared
equally between the brothers and sisters per capita, eventually corrected by representation. If
one parent died, three quarters go to the brothers and sisters. If there are no parents left, the
brothers and sisters share the entire succession.
First corrective mechanism: representation
A first correction is obtained through the technique of representation. The rule of
representation permits a potential heir to step into the shoes of and so receive the share that
his predeceased ascendant would otherwise have inherited (article 739 BCC). This is a legal
fiction that allows an heir to take the place of his ancestor who is already dead at the moment
the succession has fallen open. The conditions for application of representation are to be
considered both as to whose place can be taken, and who can take the place.
It is possible only to take the place of a person:
• who predeceased (not someone who renounced the succession);
Aperçu du droit interne successoral
171
• who had capacity to inherit (not unworthy);
• who was a descendant, brother or sister, uncle or aunt of the deceased.
That place can be taken only by a person:
• who is a descendant of the person whose place is taken (he may have renounced the
succession of the latter);
• who has capacity to inherit.
If two or more persons are inheriting through representation they inherit per stirpes (as
opposed to per capita). This means they inherit as one person, in lieu of the one person they
represent, so that they will have to divide, in equal shares, the portion of the predeceased heir
whom they represent.
Second corrective mechanism: splitting
In some circumstances the succession is split into two lines: the paternal and the maternal
line. One half of the succession then goes to heirs who are blood related through the father,
the other half to heirs who are blood related through the mother.
The technique of splitting must be applied if there are heirs from the third or fourth category
(article 746 BCC). A limited application of splitting is made in the second category if there
are half brothers or half sisters (article 752 BCC). The heir who is the nearest in category and
degree within that line (article 733 BCC) inherits the one-half part of the succession going to
one line. However, if there is no heir in one of the lines, the property devolves entirely upon
the other line (article 755 BCC).
Splitting in the second category
If there are half brothers and sisters, a limited splitting is applied. The succession is divided in
a paternal and a maternal line, each receiving one half of the succession. Half brothers and
sisters inherit only in the line of the common parent. Full brothers and sisters inherit in both
lines.
Splitting in the third category
If parents are coming up without brothers and sisters or if only ordinary ascendants are left,
the third category applies a full splitting. One half of the succession goes to the paternal line,
the other to the maternal line. In each line the nearest category excludes the others, and within
that category, the nearest degree excludes the others.
If there are two parents left, each gets one half. If father is still alive, and the grandmother
from mothers side, they both get one half. If a parent is coming up with an ordinary collateral
from the other line (fourth category), both receive half of the succession, but a correction is
added in favour of that parent: he will additionally get one third of the collaterals half in
usufruct (article 754 BCC).
Splitting in the fourth category
If only ordinary collaterals are present, the full splitting applies. It is important to note that
one cannot inherit if one is related further than the fourth degree, except if one is coming up
by representation.
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II. Est-ce quil y a des particularits par rapport aux enfants naturels, aux enfants
adultrins ou aux enfants adopts ?
Since the Act of 31 March 1987, no matter how filiation has been determined, children and
their descendants have the same rights and obligations towards their parents and relatives, and
vice versa (article 334 BCC). However, filiation has to be legally and definitively determined.
This is not possible if the determination of filiation would reveal an incestuous relationship
between the child's mother and father, both horizontally (brother and sister) and vertically
(father and daughter, or mother and son) (articles 313 2, 314, second alinea and 321 BCC).
Children born in and out of wedlock enjoy the same rights and, as such, the same inheritance
rights. Children born out of wedlock are full and regular heirs, enjoying the saisine and a
reserved portion (see further) in the same way as other descendants. However, some
discrimination still exists in relation to succession rights of children born out of wedlock.
• First, article 828, first alinea BCC, states that heirs whose relationship with the deceased
has been established only after the latter's death and who did not demand their
inheritance rights within six months from the opening of the estate, cannot question the
validity of acts performed in good faith by other inheritors, nor can they demand their
share in assets regarding property that has been alienated or distributed by the other
inheritors after the six-month period has elapsed. According to the second alinea of
article 828, these heirs may demand their share in value.
• Based on article 837, first alinea BCC, the surviving spouse or descendants of a
marriage, during which adultery was committed, may demand that a child of an
adulterous relationship who has not been raised in the family dwelling be excluded from
inheriting hereditary assets. The descendants of the marriage have no such right if the
marriage was dissolved before the opening of the succession (article 837, third alinea
BCC). The child of the adulterous relationship will receive his share in value (article
837, second alinea BCC).
The status of an adopted child differs according to the form of adoption. In the case of simple
adoption (adoption simple) the child retains all his inheritance rights in his natural family. He
has the same succession rights in the estate of the adopter as an ordinary legitimate child,
except as regards the relatives of the adopter (article 365 BCC). In the case of full adoption
(adoption plnire) the child loses all inheritance rights in respect of his natural family, but is
completely assimilated into his adoptive family (article 370 BCC).
III. La vocation successorale du conjoint survivant et linfluence du rgime matrimonial
General observations on marital property law
In order to understand the property rights of a surviving spouse it is necessary to take into
account the spouses marital property regime. A fundamental principle is that marital property
comes first, followed by succession. Therefore, if community property exists, which is
automatically dissolved in case of death of one of the spouses, this community must be
settled, liquidated and distributed before one can deal with succession. Even if there is
separation of property, the marital property situation must be settled first. One should not
forget that spouses, who are married with separation of assets, very often have joint property,
which must be divided between them.
Aperçu du droit interne successoral
173
In Belgian law, as in all continental legal systems, the concept of marital property law refers
to that set of specific rules dealing with the patrimonial consequences of a marriage. Two
different regimes may be discerned in Belgian marital property law.
First, the basic marital property system or primary regime defines the mutual rights and
obligations of husband and wife. It contains basic rules both on the personal and patrimonial
level, and applies to all marriages, whether or not there is a marital contract (articles 212-224
BCC). Patrimonial rules are, for example, that the family home may not be sold without
consent of the other spouse, that spouses are jointly liable for household debts, and that a gift
inter vivos or personal security given by one spouse may be declared null and void if
requested so by the other spouse before a certain date and if proven to endanger the family
interests.
The secondary regime regulates the patrimonial aspects of marital life, both during and upon
dissolution of the marriage. This regime may be chosen by the spouses through a marital
contract. If the spouses do not make such a choice, a statutory system is applied, which is
called the legal regime.
The Belgian legal regime is a system of community property limited to the marital gains.
Thus, besides the community property, there are two other patrimonies, i.e. the separate
property of the husband and of the wife (article 1398 BCC). Common are the assets acquired
during the marriage for value or consideration. Premarital goods and assets acquired during
the marriage by way of succession, will or gift are separate property. There is a presumption
of community property. Income from professional activity is automatically and by virtue of
law community property. Income from separate property falls into the community, unless
provided otherwise by marital contract.
It is possible to make a prenuptial contract adapting the community property regime by
limiting or extending the community, or by introducing other distribution rules than the fiftyfifty
rule, in favour of a surviving spouse. Another type of matrimonial property regime is the
separation of property, that can be combined with a limited internal community or with
participation mechanisms giving one of the spouses an obligatory claim towards the other
upon liquidation of the system. It is possible to change the marital property system during the
marriage, by notarial act. For major changes strict material (interest of the children and third
parties) and formal requirements (court approbation, publication) must be met.
Marital property law comes first
In the case of death, the marital property system must first be settled. In the case of
community property, one half of the community (subject to any contractual modification)
goes to the surviving spouse by virtue of marital property law, and has nothing to do with
succession law. The other half of the community property passes under the law of succession.
In the case of separation of property, all property of the deceased belongs to his estate,
including his share in co-owned property.
The surviving spouse is a regular and full heir
The surviving spouse is a regular statutory heir who enjoys the saisine. Such regular heir
enjoys the rights and claims of the deceased. However, he is also required to pay the debts of
the estate.
Only a spouse, who, at the time of the death of the deceased, was still married to the latter, is
considered to be a surviving spouse (article 731 BCC). Divorced or judicially separated
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spouses cannot qualify to inherit from their former partner. If the spouses lived, in fact,
separately at the time of death, in principle the surviving spouse will inherit. However, it is
possible for the deceased to disinherit his spouse through a will, if certain conditions are met.
Intestate rights of the surviving spouse
According to article 745bis 1 BCC the intestate inheritance rights of the surviving spouse
vary according to what other heirs are present. Three situations may be discerned.
The first situation occurs when the deceased leaves descendants, adopted children or their
descendants. The children do not necessarily have to be born of the marriage of the deceased
with the surviving spouse. In this case, the surviving spouse will receive the usufruct (life
interest) in the entire estate (article 745 bis1, first alinea BCC), while the nude property will
be divided equally between the descendants, eventually with application of representation.
Secondly, if the deceased leaves no descendants but other inheritors, the surviving spouse
receives full ownership of the share of the predeceased in the community property (if any) and
usufruct in the deceaseds separate property (article 745 bis 1, second alinea BCC). Thus, the
surviving spouse receives full ownership of the entire community property, half of which is
obtained by virtue of marital property law (see above), and the other half by virtue of
inheritance law. This rule clearly favours spouses married under a community property
regime. If a house was community property, the surviving spouse will be full owner for the
entirety; if a house was joint property in a regime of separation of assets, the surviving spouse
will be full owner of his own half share, and only have a right of ususfruct in the other half
belonging to the inheritance, in which he will have to tolerate the rights of the deceased's
blood relatives.
Thirdly, if the deceased leaves no other inheritors, the surviving spouse receives full
ownership of the entire estate (article 745 bis 1, third alinea BCC).
The inheritance rights of the surviving spouse have resulted in a decline of the traditional
inheritance rights of the descendants of the deceased, who have to await the death of the
surviving spouse before they will have full ownership of the estate.
For other inheritors, the situation is even worse. They lose their rights to the community
property, and only receive an interest in the separate patrimony of the deceased that only
matures on the surviving spouses death.
Specific rules concerning the right of usufruct of the surviving spouse
The division of inheritance rights in usufruct and bare ownership during the usufruct may
cause some practical problems. Often, heirs prefer full ownership. Notwithstanding any
stipulation to the contrary, an heir receiving bare ownership may require that for all property
subject to usufruct an inventory of real property and a list of personal property be made. He
may also require that the sums of money be invested and that bearer securities be, at the
choice of the surviving spouse, be converted into registered securities or deposited in a joint
bank account (article 745ter BCC).
Moreover the law makes it possible to convert usufruct either into full ownership of the
hereditary assets burdened with usufruct, into cash, or into a price-indexed and guaranteed
annuity (article 745quater-sexies BCC). In practice, this is an important device. There is
however few case law on this subject, because most of the time the conversion is negotiated
and settled in a deal or transaction between the spouse and the nude property owners, such as
e.g. children out of a previous marriage.
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IV. Le concubin ou le partenaire homosexuel.
The only measures taken for cohabitants concern inheritance taxes. No measures were taken
concerning succession law. Cohabitants are thus considered as third persons. Therefore, they
cannot inherit intestate nor do they have a protected heirship. They can only inherit based on a
will.
V. La vocation successorale de ltat.
Only persons who are blood relatives of the deceased, living at the time of death, may inherit,
if there is no will. The only exception is the surviving spouse, who is a legitimate heir even
although not blood related. If there are no blood relatives, the surviving spouse will inherit
everything.
If there is no spouse then the succession is without an heir, and the State may inherit (article
768 BCC). If no one claims the estate (including the State) and any heirs that are known have
renounced, the succession will be declared vacant (article 811 BCC).
VI. Exemples
Exemple 1
The spouse will receive, by virtue of matrimonial property law, half of the community of
gains in full ownership.
The other half of the community together with the separate property of the deceased
constitutes his succession. It is inherited in usufruct by the spouse and in nude property by the
common child.
Exemple 2
The same as above except that the nude property now goes for one half to the child and for
one half to the grand-child, by representation.
Exemple 3
The spouse receives full ownership on the entire community property. On the separate
property of the deceased she will receive usufruct while the nude property thereof will go for
one quarter to the mother and for 3/8 to the brother and 3/8 to the niece by representation for
the deceased sister.
Exemple 4
Mother receives one quarter in full ownership and brother and niece each 3/8.
C. La rdaction de dispositions pour cause de mort
I. Quel âge minimum est requis pour la capacit de tester ?
The majority age is 18.
A minor of 16 years old has the capacity to dispose of his assets by will, but only for half of
the assets an adult would be allowed to dispose of (article 904 BCC). Article 907 BCC forbids
dispositions in favour of the guardian.
An exception for minors under 16 (article 903 BCC) is article 1095 BCC regarding gifts in a
marital contract in favour of the spouse, with assistance of the minors parents.
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II. Les formes de dispositions pour cause de mort
1. Quelles formes de dispositions pour cause de mort y a-t-il ?
Under Belgian law, there are three valid forms of will: the holograph will, the public will, and
the international will (article 969 BCC).
• A holograph will is one that is entirely hand-written, dated and signed by the testator
(article 970 BCC). For the will to be valid, the person making it must write it himself. A
typed will is void, as is one drawn up by someone else.
• The will made by public deed is one that is written down by a notary in the presence of
two witnesses, or by two notaries. Certain general conditions that apply to any notarial
act must be satisfied. In addition, some particular and very strict formalities regarding
the witnessing, signing and form of the will must be satisfied (see articles 971 to 975
BCC).
• The international will consists of both a private document and a notarial act. This was
introduced by the Act of 2 February 1983 enacting the Treaty of Washington of 1973.
The private document: The will may be written by the testator or by someone else and may be
handwritten or typed in any language. However, it may not contain materially testamentary
dispositions by two or more persons (see article 968 BCC C see above).
The testator declares in the presence of two witnesses and a notary that the document is his
will and that he knows the contents of it. In the presence of these persons the testator signs the
will or acknowledges his signature. The international will is invalid if signed by a person
other than the testator.
The notarial act: The purpose of the notarial act is to prove that the formalities have been
complied with. Article 10 of the Law of 1983 determines its form and subject matter.
2. La forme du testament international est-elle utilise de façon significative ?
After almost twenty years, it seems that a majority of the Belgian notaries still is not using the
international will and adheres to the public will. There are however some notaries in larger
firms, who never make a public will and always use the international will. In my own practice
as an attorney especialised in estate planning, and therefore making numerous concepts of
wills, I have always used the international will.
3. Statistiques
Unknown to me. If necessary, I will contact the Federation of Notaries.
4. Validit testaments priviligis
Military wills : 6 months after the moment the testator has returned in a place where it is
possible to make a normal will (article 984 BCC).
Wills made in a place blocked because of deceases : 6 months after returning into a normal
situation or place (article 987 BCC).
Martime wills : 3 months after being on land again (article 996 BCC)
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177
III. Le dpôt et limmatriculation de testaments
1. O les testaments sont-ils dposs et immatriculs ? Y a-t-il un registre central de
testaments ?
2. Les testaments trangers peuvent-ils galement y tre dposs et les personnes
trangres ont-elles le droit de prendre connaissance du dpôt et de limmatriculation ?
The existence of the holograph will may be registered in the central register of wills (registre
central des testaments). Rather than merely keeping the will in a safe, the notary may draw up
a notarial act of deposition of the will, which certifies the date of the will. At the same time,
the testator may witness his writing and his signature. In that case existence of the will must
be registered in the central register of wills, unless the testator has explicitly dismissed the
notary to do this.
The existence of the public and international will must also be registered in the central register
of wills.
The Central Register of Wills is kept in Brussels by the Royal Federation of Belgian
Notaries.The Federation arranges for the registration of a will in other countries and it
answers all questions relating to the existence of and the place where a will is kept.
D. Les dispositions pour cause de mort
I. Y a-t-il une diffrence entre la dvolution successorale universelle (institution
dhritiers) et une dvolution successorale partielle (legs)? +
There certainly is a difference between inheriting as a heir or as a legatee. Among legatees, a
distinction is made between the universal legatee (who will receive the entire succession or
what is left after delivering other legacies), the legatee under universal title (called to receive
a abstract portion of the estate) and the specific legatee (called to receive one specific or
particular asset) (see articles 1002-1024 BCC).
Belgian law deals with the transmission of assets in the estate by adopting the system of direct
factual possession (saisine). From the moment of death the heirs seized have the right to take
possession of all assets, rights and actions of the deceased (article 724 BCC). Transmission of
the inheritance operates directly and is not administered by a separate body (such as executors
or administrators) as in common law countries. Under saisine an heir may take possession of
the assets in the deceased's estate, administer them, derive any benefits from them and
represent the estate in any litigation. He may exercise these rights even when he has not yet
accepted the inheritance. However, he should be careful, because several actions may lead to
the conclusion that he tacitly accepted. Ownership of hereditary assets only follows from
accepting the succession (with retroactivity until the moment of death) (see further).
Certain categories do not derive their rights as from death, but must seek an order for
possession (envoi en possession) from the court. That order confers saisine on them. This
applies where the deceased's estate passes to the State. It also applies to the universal legatee,
not faced with reserved heirs, whose title derives from either a holograph will, or a will in
international form. On the death of the testator, such wills must be presented to a notary who
executes the formalities laid down in article 976 BCC. If such a legatee was appointed in a
public will, he would enjoy the saisine (see above).
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In all other cases, be it that of a universal legatee faced with reserved heirs claiming their
rights or of a legatee under universal title concerning a share of the estate or a specific legatee,
delivery of the legacy is required. Delivery is not subject to any particular formality.
II. Les legs du dfunt ont-ils des effets rels ou purement obligatoires (Legs particulier par
lequel le lgataire ne reçoit quun droit personnel sur la chose lgue ; legs par lequel le
lgataire devient directement propritaire de la chose lgue)
Legacies have an effect in rem and give a property right towards the assets. However as
indicated above, a distinction must be made between the property right and being put in
possession. Therefore, delivery of the legacy is required.
III. Excution testamentaire et institutions comparables
The law permits the testator to appoint one or more persons to supervise the implementation
of his wishes; such persons are known as testamentary executors (excuteurs testamentaires)
(article 1025 BCC). They can only be appointed by will. In principle, the duties of a
testamentary executor involve keeping a watchful eye over the heirs in the interest of the
legatees.
However, the will may confer saisine on the testamentary executor, which permits him to take
possession of movable assets belonging to the estate, for a period of no longer than one year
and one day. The heirs are therefore deprived of the administration of the movables. The
testamentary executor must have a notarial inventory drawn up. He has power to sell the
assets if there are insufficient funds to discharge all the legacies for which he is responsible.
One year after death of the deceased, he must render account for his management of the estate
(article 1031 BCC).
IV. Autres
Parental distribution (articles 1075-1080 BCC)
Parents and other ancestors may make a distribution and division of their assets to their
children and remoter issue. This may be undertaken by inter vivos or mortis causa deeds
under the conditions and formalities prescribed for inter vivos and testamentory gifts. Where
such distribution is made inter vivos, it may only involve existing assets.
E. Dvolutions successorales spciales pour
certains biens successoraux
• Act of 16 May 1900 concerning modification of the devolution for small successions,
Moniteur belge 21-22 May 1900, applicable to succession containing immovable property
with a fiscal revenue not exceeding 1561,73 Euro.
For several notaries, this system is of importance. However, in a more international practice,
this act is completely irrelevant. I have never had a case where this Act was to be applied.
• Act of 29 August 1988 concerning the devolution of agrarical enterprises in order to promote
their continuity, Moniteur belge 24 September 1988, erratum 15 November 1988
This act provides for a right to take over movable and immovable property of the agrarical
enterprise at a certain price. Same remark as above as to its practical importance.
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179
• The Act of 22 December 1998, Moniteur belge 15 January 1999, has introduced a special
regime of gifts by notarial act of a company or shares therein, enjoying under certain strict
conditions a tax privileged regime of 3% (articles 140bis-140octies Code of Registration
Taxes). Simultaneously a second alinea has been added to article 922 BCC indicating that
gifts done under the regime of article 140bis must only be added to the fictive hereditary mass
(see further) at their value at the time of donation (in lieu of at the moment of death). It is
obvious that this new regime is of great importance for the estate planning practice, both for
fiscal and for family planning reasons.
F. Pacte successoral et contrats comparables
An individual may not by any deed or agreement dispose inter vivos of any right or asset that will or
may form part of a future estate (article 1130 BCC). An agreement regarding succession to a living
person's estate is forbidden if that agreement purports to renounce merely contingent rights in such
a future estate, or parts thereof. The prohibition on materially conjunctive wills (article 968 BCC)
has already been discussed above.
Agreements concerning future inheritance rights are considered contrary to public policy (ordre
public) and are, in principle, ineffective. Some examples of prohibited agreements are an agreement
by which one appoints an heir; a legacy or promise of a legacy made by a contract in return for
some consideration; a deed (unilateral or bilateral) by which a presumed heir renounces his future
hereditary entitlement.
Belgian law does, however, provide for some exceptions to the rule prohibiting agreements on
future inheritance rights. The most important are as follows:
Formal nomination of an heir
The formal nomination of an heir (institution contractuelle) is an agreement otherwise than for
valuable consideration by which one disposes of all or part of the assets of one's estate for the
benefit of another person. Such nomination is permitted only in the following cases:
1) A third party may make a nomination in favour of one or both of the future spouses in a
marriage contract (article 1082 BCC).
2) The spouses themselves may make such a nomination in the marriage contract (article 1093
BCC). These gratuitous nominations may be modified or revoked by the spouses by
agreement, in accordance with the formalities applying to the modification of marriage
contracts (articles 1394 to 1396 BCC).
3) During the marriage such a nomination may be made by the spouses in a deed modifying the
matrimonial regime or by a simple notarial act. It is advisable that such nomination be
undertaken by separate deed in order to ensure its revocability in the event of later doubts
(article 1096 BCC).
Succession agreement under article 918 BCC
Both the sale and the gift with reservation of usufruct rights or any other life interest contracted by
the deceased with one of this descendants must be taken into account in ascertaining the estate's
disposable share for the entire full ownership value of the property. However, the other heirs with a
reserved portion may explicitly agree with and intervene in such act, thereby waiving their rights to
claim the eventual reduction of such transaction, because of infringement of their protected heirship
rights.
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• Another example is the parental distribution, already mentioned above.
G. Part rservataire
I. La nature du droit
The freedom of a person to dispose of his assets by will is limited in most continental legal
systems through the traditional mechanism of forced heirship or legitim or reserved portion. It
is a share of the inheritance, of which these heirs may not be deprived and therefore protects
them against all excessive gifts by the deceased.
The Belgian forced heirship is an inheritance right. The protected heir has a property right
towards hereditary assets and must not be content with a mere claim or obligatory lien. He has
an absolute right to receive his legitim en nature, in hereditary assets, and unburdened.
II. Qui a droit une part rservataire ?
The legitim is traditionally guaranteed to certain heirs (children and ascendants), because of
their close blood relationship with the deceased. In Belgium, in addition to blood relatives,
since 1981 also the surviving spouse is entitled to a legitim. To claim a legitim one must have
inheritance rights and, accordingly, an unworthy heir or a person who has renounced the
succession could not claim a legitim.
Blood relatives with a reserved portion are, first, the children (and their issue if coming up
through representation) (articles 913 and 914 BCC). Their protected heirship and the free
disposable shares vary according to the number of children (article 913 BCC). Where a child
predeceases leaving issue, that issue will inherit his share per stripes.
Secondly, the ascendants also enjoy a forced heirship (article 915 BCC). This applies only if
the ascendants are called to the succession; for the parents this might be in the second
category; for the other ascendants it applies only from the third category on (see supra).
It is important to note that ascendants cannot claim a reserved portion against the surviving
spouse (article 915, second alinea BCC). However, if the deceased has no descendants, the
ascendants who are in need at the time of his death may claim maintenance from his estate up
to the amount of the inheritance rights which they lose because of gifts to the surviving
spouse (article 205bis 2 BCC).
In the Belgian Parliament, a controversy arose concerning a reserved portion for the surviving
spouse. Advocates argued that this right was inevitably connected with the recognition of the
surviving spouse as a full and regular heir. Opponents found this reserved portion to be
impractical and technically unrealisable. Moreover, the adversaries argued, it imposed a new
and undesirable limit on a married person's freedom to dispose of his assets by testament as he
wishes.
A compromise was found. The surviving spouse enjoys a reserved portion, but it is merely
analogous with his intestate right, usufruct, and not a reserved portion in full ownership.
Moreover, unlike the reserved portion of others, the deceased or a judge may, under strict
conditions, deprive the surviving spouse of this right.
III. Quel est le montant de la part rservataire ?
The reserved portion is determined as a fixed share of the succession, varying according to the
type of protected heir, the number of heirs, and the other heirs present.
Aperçu du droit interne successoral
181
Reserved portion of blood relatives
First of all descendants:
No of children Global reserve Individual
reserve
Disposable share
1 1/2 1/2 1/2
2 2/3 1/3 1/3
3 3/4 1/4 1/4
4 3/4 3/16 1/4
If ascendants are called to the succession, their reserved portion is one quarter of the
succession for each line where ascendants are participating as heirs. In such line, the nearest
ascendant is protected.
Reserved portion of the surviving spouse
The surviving spouse enjoys an abstract or concrete reserved portion, whichever he chooses.
The abstract or quantitative reserved portion is the right to usufruct in half of the property of
the estate (article 915bis 1 BCC). The concrete or qualitative reserved portion is the usufruct
in the immovable property serving on the day of the opening of the succession, as principal
family dwelling and the furniture therein (the socalled preferential assets) (article 915bis 2
BCC).
Both rights are a minimum. If the principal family dwelling and furniture would represent
more that 50 per cent of the estate, the protected usufruct rights over these preferential assets
will stand (see article 915bis 2, third alinea BCC). If these assets would be valued at less
than half the estate, usufruct rights over other assets will be added in order to obtain the
abstract reserved portion, being the usufruct in one half of the estate.
If the surviving spouse shares with other heirs who benefit from a reserved portion, the
spouse's reserved portion will proportionally burden the heirs' reserved portion and the
disposable portion (article 915bis 4 BCC). That is in the situation that the testator wants to
give this disposable portion to a third party. If he wants to maximise the inheritance position
of his spouse, then he can give her the entire disposable portion, and the children will have to
tolerate entirely the burden of that spouses usufruct rights (see article 1094 BCC).
Number of
children
Maximum amount of gifts or legacies to surviving
spouse
1 1/2 in full ownership
1/2 in usufruct (over the children's reserved share)
2 1/3 in full ownership
2/3 in usufruct (over the children's reserved share)
3 or more 1/4 in full ownership
3/4 in usufruct (over the children's reserved share)
In competition with all other blood relatives (ascendants or collaterals), the surviving spouse
may inherit the whole estate, because the ascendants lose their own forced heirship right in
relation to the surviving spouse.
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Unlike the traditional blood-legitim, the reserved portion of the surviving spouse may be
taken away. However, the surviving spouse who is in need at the time of the death of his or
her partner, may invoke article 205bis 1 BCC and claim maintenance from the latter's estate.
First of all the surviving spouse may be disinherited form the abstract legitim (usufruct over
half the estate) under the following conditions, laid down by article 915bis 3 BCC. The
deceased must write a will divesting the surviving spouse of his reserved portion. Secondly,
the spouses must have lived separately on the day of the death for more than six months.
Thirdly, the deceased must have requested a separate residence before his death, by legal
action, either as plaintiff or defendant. Finally, the spouses may not have resumed
cohabitation after that legal action. If these conditions are met, the surviving spouse is
automatically disinherited. The judge has no discretionary power.
If these conditions are not met, the surviving spouse invariably receives this abstract reserved
portion. However, the concrete legitim (usufruct over preferential assets) may still be lost in
the case of factual separation. In this hypothesis, the usufruct in principle applies to the house
in which the spouses had established their last conjugal residence and the furnishings therein,
but only if, first, the surviving spouse continued living there or had been prevented against his
or her will from living there and secondly, the awarding of such usufruct is equitable (article
915bis 2, second alinea BCC). In this situation the surviving spouse is not automatically
disinherited. The judge has discretionary power and will determine whether or not it is
equitable to award usufruct. The court will examine which one of the spouses is guilty of the
factual separation.
Thus in case of factual separation, if the surviving spouse is living in the last family dwelling,
he will enjoy his concrete legitim, unless descendants can prove that this is not equitable. If
the surviving spouse does not live in the last marital residence, he will obtain such legitim
only if he proves that he left the home involuntarily, and that it is equitable to award him such
usufruct.
IV. Dlai
Thirty years
V. Les donations du de cujus ou les contrats matrimoniaux sont-ils respects lors de la
dtermination des droits la part rservataire?
Reduction
The calculation of the reserved portion is not done on the basis of the assets present upon
death, but on the basis of a fictive hereditary mass, which must be established mathematically.
Therefore, all gifts inter vivos done by the deceased, whenever, are added to the existing
assets. They must be added according to their status at the time of the gift, but according to
their value upon death (article 922 BCC with the recent exception for shares and companies in
alinea 2 as has been explained supra).
After deduction of the debts, the net result constitutes the fictive hereditary mass. On this
basis the fixed share of forced heirship must be calculated. The remaining part of the
succession is disposable. To that disposable part, first, the gifts which have been made and,
secondly the testamentary dispositions, are imputed. If the total figure would exceed the
disposable portion, it must be reduced. The heirs with a reserved portion may then enter a
claim for reduction of testamentary dispositions or gifts inter vivos. Legacies are reduced first
and then the gifts, beginning with the latest one (article 923 BCC).
Aperçu du droit interne successoral
183
Restitution (hotchpot)
This mechanism of reduction should not be confused with the mechanism of restitution or
bringing into account of gifts.
In principle, every gift made to a person who has inheritance rights on the donor's death is
presumed to be a simple advance of his inheritance. Upon death of the donor or testator the
heir who has received the gift is obliged to make restitution or bring it into account. Through
this process of bringing into account, the law tries to put all the heirs on the same footing
before division of the estate. However, the donor may expressly exempt an heir from the
obligation to make restitution.
Marital benefits
Benefits following from the matrimonial property regime or its functioning, composition,
distribution are marital benefits that are considered to a large extent to be benefits for value or
consideration. Therefore, these are not gifts and must not be added to the fictive hereditary
mass and do not risk the danger of reduction because of violating forced heirship rights.
To this basic principle two extremely important exceptions are formulated in articles 1464 and
1465 BCC. The first one governs situations where only common children are present. A limit
is determined above which the benefit of the surviving spouse is qualified as a gift, to be
added to the fictive mass. As long as the spouse does not obtain more than all the marital
gains, his or her own input into the community and half of the input of the deceased, no gift is
present. If there are children from a previous relation, then the limit is much lower. The ratio
legis is logical. Such children cannot be expect to await the death of the surviving spouse to
inherit. Indeed, since that spouse is not their parent, they will never inherit intestate from him
or her. Therefore, what the surviving spouse receives above half of the marital gains and his
or her own input into the community, must be considered as a gift.
H. Renonciation la succession ou la part rservataire
A person who has the right to inherit is under no obligation to accept the inheritance (article 775
BCC). The law permits him either to accept the inheritance "pure and simple", or to renounce it, or
to accept the inheritance under the privilege of an inventory, i.e. without liability for debts beyond
the assets inherited.
This option cannot be imposed by the deceased. The option is indivisible and therefore can only be
exercised in respect of the whole of the inheritable estate. The option is an independent personal
right and is not affected by the choices of other persons entitled to inherit. The effects of the option
are determined by law and cannot be modified by a term or condition. In principle, the option once
taken is irrevocable. On the opening of the succession process every person with inheritance rights
may exercise the option. Special provisions exist for the various categories of persons lacking
capacity. The option may be exercised during a period of 30 years after the opening of the
succession process (article 789 BCC).
Renunciation of inheritance rights and liabilities will not be presumed. The formalities to be
satisfied are prescribed by article 784 of the Civil Code. A declaration must be made to the registry
of the court (tribunal de premire instance) in the district where the succession process was opened.
It is recorded in a register kept for that purpose.
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I. Louverture de la succession et la transmission du
patrimoine du dfunt aux successibles
I. Louverture de la succession
The succession process can only be opened at the moment of the death of an individual
(article 718 BCC). The place where a succession "falls open" is the place of the last domicile
of the deceased.
II. Quelles sont les dispositions de la Belgique relatives aux comourants (les personnes qui
dcdent dans un mme vnement)?
If two or more individuals die in circumstances where it cannot be determined who died first,
the deaths are held to have occurred simultaneously (article 721 BCC, introduced by the Law
of 9 December 1977 enacting the Benelux Treaty on commorientes of 29 December 1972).
III. La succession est-elle acquise directement ou indirectement par un acte juridique
(acceptation, envoi en possession, hereditas iacens) ; y a-t-il un autre ayant droit qui
intervient (executor administrator)?
See above regarding saisine and transmission of the estate.
Adde:
An heir who accepts the inheritance under the benefit of an inventory is obliged to administer
the succession. He must render an account of his management to the creditors and the legatees
(article 803 BCC).
In certain situations administration of the estate is conferred:
• on a curator for a "vacant" succession, where no heir presents himself (article 813 BCC)
(see supra);
• on a provisional administrator appointed in cases of urgency by the president of the
court of first instance.
IV. Lacceptation de la succession et la renonciation
Acceptance "pure and simple"
On acceptance "pure and simple" the person entitled to inherit the estate receives the benefit
of all the assets of the deceased and the burden of all his debts. Acceptance can be express or
tacit. Express acceptance occurs if one declares oneself as an heir in an authenticated or
private document (article 778 BCC).
Tacit acceptance may be adduced from the heir's behavior. If the heir carries out acts that
necessarily imply his intention to accept and which he would have no right to de except in his
capacity as heir, tacit acceptance is presumed (article 778 in fine BCC).
Renunciation
See above
Acceptance under benefit of inventory)
An heir who accepts sous bnfice d'inventaire is only held liable for the debts of the
deceased to the extent of the assets that he receives out of the deceased's estate. His own
property is immune from claims of creditors of the deceased. A declaration must be made to
Aperçu du droit interne successoral
185
the registry of the court in the jurisdiction where the succession process commenced, and the
declaration is also published in the Moniteur belge (article 793 BCC). A notarial inventory
that is faithful and exact as to the assets in the estate must be drawn up (article 794 BCC).
Forced acceptance
An heir who has diverted or concealed the deceased's assets is deprived of his right to
renounce the inheritance and remains an heir "pure and simple" without having any right in
the diverted or concealed assets (article 792 BCC).
V. Y a-t-il des limitations de lacquisition pour cause de mort par des trangers (en
particulier en ce qui concerne les immeubles) ?
No
K. La responsabilit des hritiers et les
possibilits de limitation de la responsabilit
I. Les hritiers hritent-ils des actifs et des passifs ?
On acceptance "pure and simple" the person entitled to inherit the estate receives the benefit
of all the assets of the deceased and the burden of all his debts.
An heir who accepts sous bnfice d'inventaire is only held liable for the debts of the
deceased to the extent of the assets that he receives out of the deceased's estate (see above).
II. Sil y a plusieurs hritiers, sont-ils tenus solidairement ou concurrence dune quotepart?
The heirs are liable for the payment of any debts of the deceased, according to their inherited
share, unless for indivisible debts. Then the heirs will be held jointly towards the creditor
(obligatio).
III. La responsabilit est-elle limite la succession ou lhritier est-il galement tenu
personnellement ? Comment les hritiers peuvent-ils limiter leur responsabilit ?
As mentioned above a distinction has to be made between the pure acceptance and the
acceptance under the benefit of inventory.
L. Pluralit dhritiers
I. Structure
The succession forms an indivision. The heirs or the general legatees will administer the
estate. If there is a testamentory executor he will have limited rights of administration (cf.
supra). Nobody can be forced to remain in indivision: therefore such division can be requested
at any time, unless an agreement to the contrary that cannot last longer than five years (article
815 BCC). This period is renewable. If immovably property is concerned, such agreement to
continue the indivision must be registered at the mortgage office (see above).
II. Partage
Upon distribution of the inheritance, all heirs obtain hereditary assets, since they all have
property rights. If assets cannot be distributed between them, any heir (article 827 BCC) can
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186
require a public sale. Upon distribution, lots must be constituted as much as possible
containing an equal quantity of movable and immovable assets, rights and claims of equal
value (article 832 BCC).
If all heirs are of majority age and they are all present, the distribution can be done by
agreement as they think fit (article 1205 Judicial Code). If a minor is among them, then the
distribution must be made by notarial deed, under the presidency and with the approbation of
the Justice of the Peace (article 1206 Judicial Code). In case of disagreement, there will be a
judicial distribution. For that purpose, any of the heirs can enter such request before the court
of first instance (article 1207-1225 Judical Code).
M. Cession dune part successorale
An individual may not by any deed or agreement dispose inter vivos of any right or asset that will
or may form part of a future estate (cf. supra).
An heir can transfer to another heir his share in a succession that has fallen open. If however this
transfer is made towards a third party who is not an heir, even if the latter would be a blood relative
of the deceased, then such third party can be excluded from the distribution of the estate, by all heirs
or even by one of them, under the condition that the price he has paid is paid back to him (article
841 BCC). The Supreme Court has decided that this rule only applies to transfer of shares in the
succession and not to transfer of an undivided share in a specific asset belonging to the succession1.
N. Preuve de qualit dhritier (et de la qualit dexcuteur
testamentaire ou de qualits comparables).
Any death of Belgian residents must be reported at the registry office in the town hall of the place
where the person died. Such declaration of death is made by two persons, preferably relatives. The
registry office will then notify the tax authorities of the death.
An akte van bekendheid/acte de notorit, or more often a declaration of inheritance, is drafted by a
notary in which the latter states the identity of the deceased and the devolution, with the identity of
the heirs (cf. supra).
O. Rforme
Although reform of the forced heirship rules has been advocated in legal doctrine (see Examen
critique de la rserve successorale, Brussels, Bruylant, Tome I and II, 1997, Tome III, 2000 and
Verbeke, A., De legitieme ontbloot of dood? Leve de echtgenoot!, Tijdschrift voor Privaatrecht
2000, 1111-1236, with summaries in English, French, German and Spanish; second revised edition
under de same title as book in the series Ars Notariatus, Kluwer, Deventer, 2002, to appear), it does
not seem that major changes can be expected in that respect.
Recently a very limited and specific proposal has been introduced and discussed in Parliament,
making it possible for spouses in a second or further marriage, if there are children from previous
relations, to arrange for the abolishment of the surviving spouses forced heirship protection in a
1 Cass. 22 April 1994, Rechtskundig Weekblad 1994-1995, 634.
Aperçu du droit interne successoral
187
marital contract (prenuptial or during the marriage)2. It is highly probable that this regulation will be
enacted soon. The reason is that this regulation is needed to solve the personal situation of an
important liberal politician who is going to engage in such a marriage.
2 Proposition de loi modifiant certaines dispositions du Code civil relatives aux droits successoraux du conjoint
survivant, 29 April 2002, Chamber, Doc. 50 - 1353/005 and 1353/006.


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