FURTHER EXPLANATION · 2 MIN READ
What was assessed in this case?
The Flemish Tax Administration published on 6 August 2026 a prior ruling concerning spouses who wished to supplement their separation of property regime. They considered optional survivorship and allocation clauses, enabling the surviving spouse after the first death to choose specific assets within the deed's boundaries.
The administration assessed the proposed clauses for those specific facts. It concluded among other things that the examined clauses did not fall under the discussed inheritance and gift tax provisions on their own and did not constitute fiscal abuse in the case presented. This is not a general approval of every choice clause. A prior ruling only binds the administration for the described acts and conditions.
The choice is not detached from the assets
A prenuptial agreement must precisely specify which assets are involved, how the choice is made and what settlement follows. Personal assets, undivided assets and assets acquired later may have different legal histories. The rights of children or other heirs and the protection of the surviving spouse must also be considered together.
With real estate, enforcement may also trigger registration tax. The decision points out that, depending on the concrete allocation, either transfer tax or sales tax may apply. This consequence therefore arises not from a single isolated label, but from the ownership situation, the chosen clause and the actual execution together.
A recognisable example and your preparation
Suppose that two spouses jointly own a home and each also has an investment portfolio. They want to give the surviving spouse leeway to choose what is necessary after death to continue living comfortably. Then it is not enough to just say that everything may go to the surviving spouse. The deed must clearly state the options, valuation, possible compensation and consequences for the estate.
Bring your current prenuptial agreement, ownership deeds, recent statement of assets and family wishes to the meeting. Notariaat Wellens first maps out the ownership relationships and then discusses the civil and tax considerations. This way you do not choose a standard clause, but an arrangement that remains executable when it is really needed later. Also discuss who should determine the choice later, within what timeframe and with which information about the values. Record your priorities beforehand in plain words. Would you like advice about your prenuptial agreement? Then make an appointment for a targeted discussion.