Inheritance law in Belgium: intestate succession, wills and inheritance tax

Who inherits when you die, what can you arrange yourself and how much inheritance tax is payable? Inheritance law in Belgium was thoroughly reformed in 2018, and many people still rely on rules that no longer apply. This article gives a clear overview of intestate succession, the rights of the surviving partner, the reserved portion, wills, the choice between accepting and renouncing, and inheritance tax in Brussels.

Where are the rules of Belgian inheritance law?

The reform of inheritance law entered into force on 1 September 2018. Since 1 July 2022, the civil-law rules have been set out in Book 4 of the Civil Code. Inheritance tax, by contrast, is a regional tax. In Flanders it is called inheritance tax (erfbelasting); in Brussels and Wallonia it is referred to as succession duties (successierechten / droits de succession).

Which region is competent depends on where the deceased lived the longest during the five years before death.

Who inherits without a will?

Without a will, the law determines who inherits: this is intestate succession (wettelijke erfopvolging / dévolution légale). The law divides blood relatives into four orders:

1. descendants: children, grandchildren and great-grandchildren;
2. the parents, together with the brothers and sisters and their descendants;
3. the other ascendants, such as the grandparents;
4. the other collateral relatives up to and including the fourth degree, such as uncles, aunts and their children.

An heir in a higher order excludes the lower orders. If a child has died before the deceased, that child’s own children take their place: this is called representation (plaatsvervulling / représentation). The same applies to the children of a brother or sister who died earlier. Relatives beyond the fourth degree do not inherit; if there is no heir and no surviving spouse, the estate in principle passes to the State.

The rights of the surviving partner

• The surviving spouse inherits, alongside the children, the usufruct of the entire estate; the children inherit the bare ownership. If there are no descendants, the spouse as a rule inherits the deceased’s share in the joint property in full ownership and the usufruct of the deceased’s own property.
• The legal cohabitant (wettelijk samenwonende / cohabitant légal) inherits the usufruct of the family home and its household contents. This right is not protected: the deceased can take it away by will, but can also extend it.
• The de facto cohabitant has no statutory inheritance rights. Only a will or other estate planning can protect him or her.

Usufruct means that the survivor may use the assets and receives the income from them, while the bare owners only become full owners on the survivor’s death. Both the children and the survivor can ask for the usufruct to be converted, for example into a sum of money. For the family home and its contents, the court cannot allow that conversion without the consent of the surviving spouse.

The reserved portion of the estate

Certain heirs are entitled to a minimum share that you cannot take away from them: the reserved portion or reserve (voorbehouden erfdeel / réserve héréditaire).

• The children are together entitled to half of the estate, regardless of their number. With one child, that is half; with two children, a quarter each; with three children, a sixth each.
• The surviving spouse has as a reserve the usufruct of half of the estate and, in any event, the usufruct of the family home and its contents, even where these represent more than half. Under strict conditions the deceased can take this reserve away by will, namely where, at the date of death, the spouses had been living apart for more than six months, one of them had applied by judicial act for a separate residence or for divorce on the ground of irretrievable breakdown, and they had not resumed living together since.
• The parents have no longer been reserved heirs since the 2018 reform. If they are in need at the time of death or as a result of it, and their child leaves no descendants, they can, however, bring a maintenance claim against the estate.

You are free to decide on the rest, the disposable portion, by will or by gifts. If gifts or legacies exceed the disposable portion, the reserved heirs can claim a reduction (inkorting / réduction). For gifts, that reduction has in principle been made in value since 2018: the recipient pays back the difference in money. More on reduction and inheritance disputes.

For that calculation, gifts are valued at their value on the day of the gift, indexed to the day of death. Since the reform, the law also allows certain succession agreements, for example a global succession agreement in which parents and children rebalance earlier gifts. Such an agreement requires a notarial deed.

Wills: three forms

Belgian law recognises three forms of will:

• The handwritten (holographic) will must be written entirely by hand, dated with day, month and year, and signed. A typed document or one written by someone else is not a valid handwritten will.
• The notarial will is executed before a notary, in the presence of two witnesses or a second notary. It offers the greatest legal certainty.
• The international will is a less common form. It may be typed or written by someone else, but the testator must declare it to be his or her will in the presence of a notary and two witnesses, and sign it before them.

A handwritten will can be deposited with a notary. The notary then registers it in the Central Register of Wills, so that it is found after death. Registration and searches go through a notary: private individuals cannot consult the register themselves. A will can be amended or revoked at any time.

Accepting or renouncing an estate

No one is obliged to accept an estate. An heir has three options:

• Unconditional acceptance: you inherit all the assets, but also all the debts, including those that only come to light later. This acceptance can be tacit, for example when you sell, give away or keep for yourself assets belonging to the estate.
• Acceptance under benefit of inventory (aanvaarding onder voorrecht van boedelbeschrijving / acceptation sous bénéfice d’inventaire): the notary draws up an inventory of the assets and debts, and you are never liable for more than the value of the assets.
• Renunciation: you waive the estate and pay no debts and no inheritance tax.

Acceptance under benefit of inventory and renunciation require a declaration before a notary, in an authentic instrument (authentieke akte / acte authentique; Articles 4.44 and 4.49 of the Civil Code). Purely protective acts, such as locking up the home or having an urgent repair carried out, do not as a rule count as acceptance. If you have doubts about the debts, do not take any step that could be construed as acceptance before you have made your choice. Note: if you renounce, your own children may become heirs, for example by representation, and will also have to make a choice.

Inheritance tax in Brussels

If the deceased lived in the Brussels-Capital Region, Brussels succession duties apply. The rates rise with the amount each heir receives and depend on the family relationship:

• In the direct line and between partners (spouses, legal cohabitants and anyone who had lived with the deceased without interruption in a common household for at least one year): from 3% to 30%;
• Between brothers and sisters: from 20% to 65%;
• Between unrelated persons: from 40% to 80%; a separate scale, from 35% to 70%, applies between uncles or aunts and nephews or nieces.

In Brussels, the surviving spouse or legal cohabitant pays no succession duties on his or her net share in the family home. Other rates and exemptions apply in Flanders and Wallonia. Timely planning, for example through gifts or an adapted will, can reduce the tax.

An estate with an international dimension

Did the deceased live in Belgium but hold another nationality, or own assets abroad? Then the European Succession Regulation (Regulation (EU) No 650/2012) determines which law applies. As a rule, this is the law of the State in which the deceased had his or her habitual residence at the time of death.

You can also choose, in a will, the law of your nationality. Such a choice may affect the reserve and your partner’s rights, so it should be carefully considered. Inheritance tax follows its own logic: assets abroad may also be taxed in Belgium, and sometimes abroad as well.

Frequently asked questions

Can I disinherit a child?

Not completely. The children are together entitled to half of the estate. You can, however, limit a child to his or her reserved portion and freely dispose of the other half, including in favour of one child or a third party.

Does my unmarried partner inherit anything without a will?

No. A de facto cohabitant has no statutory inheritance rights. If you want to protect your partner, you must make express arrangements, for example by will. For inheritance tax purposes, however, since 1 January 2024 a de facto partner in Brussels pays the same rate as a spouse, provided they had lived with the deceased without interruption in a common household for at least one year.

Do I have to accept an estate with debts?

No. You can renounce or accept under benefit of inventory. In the latter case, you never pay the debts out of your own assets. Do not take any step amounting to acceptance as long as you do not know the state of the estate.

Novex Advocaten can assist you

We advise on your rights as an heir, on the consequences of a will or gift and on the steps to take after a death. If the division of the estate reaches a deadlock, we defend your interests, through negotiation or before the family court (familierechtbank / tribunal de la famille).

We work in English, Dutch, French and Arabic, including for estates with an international dimension. Read more about our legal assistance in Arabic.

Call 0484 99 22 72 or email asfour@novexadvocaten.be.