In brief
The statutory share is the legal minimum portion of the estate that a child can claim, even if they have been disinherited via a will. This right is also referred to as the child’s portion.
- The statutory share amounts to half of the statutory inheritance and is a monetary claim against the estate, not a right to specific assets.
- The claim must be actively asserted against the heirs or the executor and expires five years after the death or five years after becoming aware of the disinheritance.
- In the case of a ‘long-term survivor’ will, the claim is in many cases only payable after the death of the surviving parent.
- Gifts made by the deceased during their lifetime may, under certain circumstances, be included in the calculation of the estate.
- Disagreement over the calculation or payment can lead to a conflict between heirs; timely legal assessment is essential.
What does disinheritance mean?
A parent can disinherit a child in a will. This means that the child is not named as an heir and receives no part of the estate upon death. Disinheritance is explicit: it must be included in the will.
Disinheritance does not automatically mean that a child receives nothing. In many cases, a disinherited child can still claim the statutory share, also known as the child’s portion. This is a mandatory legal claim that cannot be excluded via a will.
Heirs who are indeed called to the estate but are uncertain about its financial state can opt for beneficiary acceptance. This protects private assets if the estate turns out to contain debts.
How is the statutory share calculated?
The statutory share amounts to half of the statutory inheritance to which the child would have been entitled without disinheritance. The calculation takes place in two steps.
Step 1: determine the statutory inheritance
The statutory inheritance is the portion of the estate that the child would inherit by law. With two children and no surviving parent, each child is entitled to half. With three children, each child is entitled to a third.
Step 2: halve the statutory inheritance
The statutory share is half of that statutory inheritance, applied to the value of the estate.
The formula:
Statutory share = ½ × statutory inheritance × value of the estate
Example: two children, estate valued at €300,000. The statutory inheritance per child is €150,000. The statutory share per child amounts to €75,000.
The value of the estate is determined at the time of death. Gifts made by the deceased during their lifetime may, under certain circumstances, be included in the calculation. We call this the fictitious debt or abatement of gifts — a point that regularly leads to discussion in practice.
Depending on the circumstances, the calculation may turn out to be more complex, for example in the case of a blended family, a ‘long-term survivor’ will, or when the estate contains debts. In those cases, legal guidance during the calculation is recommended.
How do you claim the statutory share?
You do not receive the statutory share automatically; you must actively claim it from the heirs or the executor. This is done in writing, preferably by registered letter.
The law sets a limitation period: the claim expires five years after the death, or five years after you have become aware of the death and your disinheritance. Timely action is essential.
In practice, the claim process follows these steps:
- You establish in writing that you are claiming the statutory share.
- You request access to the inventory of the estate to be able to assess the value of the estate.
- Based on this, you calculate your claim and communicate it to the heirs or executor.
- If the other party does not cooperate or disputes the calculation, legal proceedings in court may follow.
In the case of a ‘long-term survivor’ will, an additional rule applies: in many cases, the surviving parent only has to pay out the statutory share after his or her death. The claim is then ‘parked’ as a non-exigible monetary claim. Whether this applies to your situation depends on the content of the will.
An inheritance lawyer can assess the correct route in your situation and guide you through the claim process. Contact us if you want to know where you stand.
What if the other heirs do not cooperate?
In practice, discussions regularly arise when claiming the statutory share: about the value of the estate, about which gifts are included, or about whether the claim has already expired.
When the other heirs or the executor refuse to cooperate or dispute the calculation, there are several routes:
- Consultation
In many cases, a structured conversation, possibly via a lawyer, resolves the impasse without legal proceedings. - Mediation
In the case of seriously strained relationships, an independent mediator can help to reach a solution. - Legal proceedings in court
If consultation yields no result, the court can be asked to determine the claim and enforce payment.
Depending on the circumstances, the judge assesses which amounts are included in the estate and whether past gifts are taken into account. This is general information and does not constitute individual legal advice.
Are you already in discussion with the other heirs but it has stalled? You can also request a second opinion to have your position and strategy reviewed.
When must the statutory share be claimed?
The law has a forfeiture period. A child must unambiguously declare their claim to the statutory share within a certain period after the death.
If action is not taken in time, the right may be forfeited.
Because deadlines can be strict, timely legal assessment is important.
Right to information
In order to calculate the statutory share, the child has the right to information regarding:
- The size of the estate
- Debts
- Gifts made
If information is not provided, legal action may be necessary.
In that case, there may be a broader conflict between heirs.
Statutory share and surviving spouse
When the statutory distribution applies, the surviving spouse often receives the assets of the estate.
The statutory share then remains a monetary claim, which is usually only payable upon the death of the survivor, unless the will stipulates otherwise.
The exact position depends on the content of the will and the family situation.
Can a parent exclude the statutory share?
The statutory share is mandatory law. A parent cannot fully exclude it.
However, provisions can be included in a will that influence the exigibility or method of calculation.
A careful legal analysis of the will is therefore essential.
Case Example
A child was disinherited in her father’s will. She received no information about the size of the estate.
After legal assistance, insight was gained into the assets and previously made donations. Subsequently, the statutory share could be correctly determined.
Every situation requires its own legal assessment.
When is legal guidance advisable?
Legal guidance is particularly advisable when:
- You are disinherited and unsure about your rights
- Insufficient information is being provided
- The calculation is being disputed
- There are large assets or businesses involved
- International aspects play a role
An inheritance lawyer can establish your position and determine an appropriate strategy.
In international situations, additional law may apply. You can read more about this on our page regarding international inheritance law.
Our Attorneys at Law
The Simmelink Lawyers team specializes in family law, International family law, and inheritance law.
The lawyers combine legal expertise with international experience.
Clients are guided by one dedicated lawyer who oversees the entire process and communicates discreetly.
In complex financial matters or an international component, a specialized lawyer is important.
We strive for legally correct, practically feasible agreements that give you predictability and peace of mind.
Carla Simmelink – Family Law Attorney, International Family Law and Inheritance Law
Family Law Attorney, International Family Law and Inheritance Law
Valerie Lingg – Family Law Attorney, International Family Law
Family Law Attorney, International Family Law
Eva Zaunbrecher-Boschloo – Family Law Attorney, International Family Law
Lawyer at Law (International) Family Law
Clients are guided by a dedicated lawyer who oversees the entire file and communicates discreetly.
Written by Carla Simmelink, inheritance law lawyer at Simmelink Lawyers.
Frequently Asked Questions
This is general information and does not constitute individual legal advice.
The statutory share is the legal minimum portion of the estate that a child can claim, even if they have been disinherited via a will. It concerns a monetary claim against the estate, not a right to specific assets. The statutory share amounts to half of the statutory inheritance. This right is also referred to as the child’s portion. This is general information, not individual legal advice.
The claim expires five years after the death, or five years after you have become aware of the death and your disinheritance. Timely action is essential. In the case of a ‘long-term survivor’ will, the claim is in many cases only payable after the death of the surviving parent. Every situation requires its own assessment.
No. The statutory share is mandatory law and cannot be fully excluded via a will. However, provisions in a will can influence the exigibility or the method of calculation. A legal analysis of the will is necessary for this. This is general information, not individual legal advice.
The costs depend on the complexity of the case and whether legal proceedings are necessary. In many cases, a legal analysis and a written demand suffice without court proceedings. Depending on the circumstances, costs can also be recovered from the estate. A lawyer can inform you about the expected costs in your situation.
Een onterfd kind heeft het recht op inzage in de boedelbeschrijving om de legitieme portie te kunnen berekenen. Wordt informatie geweigerd, dan kan een advocaat een sommatie sturen of de rechter vragen informatie af te dwingen. In veel gevallen leidt een formeel verzoek al tot medewerking. Dit is algemene informatie, geen individueel juridisch advies.
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