From now on anyone getting married does so under a limited community of property regime. What that means is that your personal possessions and debts from before the marriage remain your property, the possessions and debts which you acquire during the course of the marriage are jointly owned. You can change the 50/50 division by drawing up or changing a prenuptial agreement. But it is important to note that this means that gift tax becomes liable.

New legislation on marriage

Since 1 January 2018 everyone marries under a limited community of property by default. What happens if you decide to have a prenuptial agreement drawn up which leads to an unequal distribution of the assets? It may then result in a gift - and therefore become subject to inheritance tax under the Act of the same name. This legislation will also apply to people entering into a registered partnership from 2018.

Gift tax need not always apply

A prenuptial agreement certainly does not always have to result in a gift. As long as the prenuptial agreement provides for a general community of property under which both spouses are entitled to equal shares, there will be no gift given by either of the spouses under the Inheritance Tax Act. You can also marry without community of property and specifically include a mutually binding final setoff clause in the prenuptial agreement which states that should you divorce or if either of you should die, that the assets will be settled in the same way as if community of property applied. Here too, you will not have to pay gift tax because the division is equal.

That’s not how we’re married

This legislation does not apply to couples married before 1 January 2018 under a community property regime. All possessions and debts are jointly owned, as are all gifts and inheritances received (unless the giver has specified otherwise or stipulated something else in the will). This includes assets that were personal to you before the marriage. If you separate, you and your spouse each receive half of the jointly owned property and debts.

Please contact Simone van der Hoeven: Dit e-mailadres wordt beveiligd tegen spambots. JavaScript dient ingeschakeld te zijn om het te bekijken. if you have any questions about this new legislation