My Parent Has a New Partner: What Does This Mean for My Inheritance?

When your parents are no longer together, or when one of them passes away prematurely, there is a possibility that the surviving parent may, at some point, enter into a new relationship. Many children then wonder what impact this may have on their parent's estate and, more specifically, on their own inheritance rights. This concern often arises in relation to the family home in which the stepparent has taken up residence. Below, we briefly examine the potential consequences for your inheritance rights.

What If My Mother or Father Remarries?

If your parent remarries without entering into a marital agreement or executing a will, the new spouse will, in principle, inherit the usufruct of the entire estate of your parent. You and any siblings will inherit the bare ownership of the estate assets. This means that, for as long as your stepparent is alive, he or she will generally have the right to use and enjoy the assets forming part of your deceased parent's estate. If your parent owned a house, the stepparent may live there free of charge or rent it out and collect the rental income. The sale of such assets, however, cannot take place without the consent of the bare owners. The usufructuary is also responsible for the ordinary maintenance of the assets, including any real estate.

If your parent rented the home in which he or she lived with your stepparent, the stepparent will acquire the sole right to continue the tenancy.

One potential disadvantage of a split ownership structure is that you and your stepparent remain legally connected. If the property is to be sold or substantial works need to be carried out, you will have to consult each other and attempt to reach an agreement. If no agreement can be reached, it may be necessary to bring the matter before the competent court. This often undesirable situation can, however, be avoided through various legal arrangements.

Can My Stepparent's Inheritance Rights Be Restricted?

Yes. Belgian law provides several mechanisms to regulate succession arrangements, particularly where one of the partners has children from a previous relationship.

A Marital Agreement

Your parent and their new spouse may include provisions concerning their respective inheritance rights in a marital agreement. Belgian law allows spouses, where one of them has children from a prior relationship, to regulate all or part of the other spouse's succession rights.

An important statutory safeguard nevertheless applies: the surviving spouse cannot be entirely deprived of the right to continue residing in the former family home for six months following the death and to enjoy the usufruct of the household contents.

Such an arrangement requires a notarial marital agreement and should be carefully drafted.

A Will

Your parent may also execute a will to limit the inheritance rights of the new spouse. However, these possibilities are not unlimited.

The surviving spouse benefits from a forced heirship entitlement (reserved portion). This reserved share consists of the usufruct of one-half of the estate, with a minimum entitlement to the usufruct of the family home and its household contents.

Children likewise enjoy statutory forced heirship protection. Together, they are entitled to one-half of the so-called fictitious estate, which includes, among other things, relevant lifetime gifts that must be taken into account. The remaining half of the estate generally constitutes the disposable portion, which your parent may distribute freely, subject to the applicable legal rules.

A will can therefore be an important estate planning tool, although it will not always allow the complete disinheritance of a new spouse.

An Inheritance Pact

In certain situations, an inheritance pact may help establish clear arrangements in advance and avoid future disputes. Such agreements are subject to specific legal conditions and formalities. The arrangements available will depend on the persons involved and the family's particular circumstances.

Can I Request a Conversion of the Usufruct?

In certain circumstances, a child may request the conversion of the usufruct. In practice, the usufruct may be replaced by a lump-sum payment or by the allocation of assets in full ownership.

Its value is determined on the basis of factors including the value of the assets concerned, the age of the usufructuary, and the statutory conversion tables.

Where a surviving spouse inherits alongside descendants from a previous relationship, a special statutory valuation rule applies. For the purpose of calculating the value of the usufruct, the spouse is deemed to be at least twenty years older than the eldest descendant from that previous relationship.

However, the conversion right cannot be enforced in the same manner in all circumstances. Special protective rules apply to the family home and its contents. The specific rights and options available must therefore be assessed on a case-by-case basis.

What If My Parent Is in a Registered Cohabitation?

Registered cohabitants have more limited statutory inheritance rights than married spouses.

Upon the death of your parent, the surviving registered cohabiting partner will, in principle, inherit the usufruct of the family home and its household contents. The children inherit the bare ownership of those assets and inherit the remainder of the estate in accordance with the applicable succession rules.

The key distinction from marriage is that a registered cohabiting partner is not a forced heir. Consequently, your parent may, in principle, completely deprive that partner of their statutory inheritance rights by will.

Here too, it is important to consider in advance the desired balance between the protection of the partner and the rights of the children.

What If My Parent Is in a De Facto Cohabitation?

Where your parent merely lives together with a new partner without any formal legal status, that partner does not automatically inherit.

Your parent may nevertheless benefit the partner through a will or another appropriate legal arrangement. In doing so, account must be taken of the children's reserved portion.

De facto cohabitation therefore does not provide a new partner with the same automatic succession protection as marriage or registered cohabitation.

How Can Inheritance Disputes Be Prevented?

The arrival of a new partner does not have to result in conflict between the parent, the partner and the children. Much uncertainty can be avoided through timely and carefully structured estate planning.

Depending on the circumstances, a marital agreement, a will or an inheritance pact may be appropriate. Other relevant considerations include the composition of the estate, ownership of the family home and any lifetime gifts that may have been made.

At Fairway, we assist clients with succession planning and with resolving disputes between heirs. We seek legally sound solutions that take into account the interests of all parties involved. Mediation may also help achieve workable arrangements and prevent family conflicts.

Do you have questions about your inheritance rights, or would you like to know how a parent can strike a fair balance between protecting a new partner and safeguarding the interests of their children? Feel free to contact one of our specialists in succession law and estate planning.