Whether an inheritance should be divided upon divorce depends on the circumstances. The conditions under which and the time at which you were married play an important role in this.
Mixing and compensation law
When you are married under the statutory limited community system, as it has been in force since 2018, each person retains their own property. You can also build up community assets. In principle, however, an inheritance that you receive during the marriage does not fall into the community of property.
If the marriage was concluded before 2018, an inheritance will, in principle, fall into the community of property, unless there is an exclusion clause. If a marriage has been concluded on a prenuptial agreement, different agreements may have been made.
To avoid discussion, it is advisable to deposit the inheritance in a separate account so that the money does not mix with public money and to discuss and record when and for what purpose it will be used. Although the court will assume that the inheritance must be repaid to the spouse who received it and the burden of proof to demonstrate that the right to compensation cannot be (fully) asserted rests with the other ( HR 5 April 2019, ECLI:NL:HR:2019:504 ).
Pronunciation
In a case before the Court of Appeal in ‘s-Hertogenbosch , the woman received an inheritance and deposited it into her own account. The inheritance, when she received it, fell outside the community. During the marriage, the woman used the amount (among other things) to live on (together with the man). However, the Court considers that she made a contribution to the costs of the household with her private assets when there was insufficient income (ex Article 1:84 DCC). The Court also sees no grounds for a right to compensation insofar as the money is used for the partnership of the parties. After all, they had already concluded a settlement agreement with a final discharge clause. The Court rejects the woman’s request and she has lost her inheritance.
Conclusion
As soon as you receive an inheritance, it is important to keep good records and to discuss and record expectations.
