FURTHER EXPLANATION · 2 MIN READ
First the contract, then the choice
A choice clause in a marriage contract can give the surviving spouse room to decide after death which community assets he or she takes over. That clause does not execute itself. First, it must be checked exactly which options are in the deed, which assets they cover and how the choice is formally documented.
The choice may concern full ownership, usufruct or a combination. Those concepts have different consequences for daily use, management, a later sale and the rights of children. Debts, compensation accounts between estates and valuations can also affect the outcome. Reading a short clause without reviewing the entire matrimonial property regime is therefore insufficient.
Term and fiscal consequences
For a death in Belgium, the estate declaration in Flanders must generally be filed within four months after death. The period is five months for a death in the European Economic Area outside Belgium and six months outside the European Economic Area. The chosen execution of the marriage contract must be able to be processed timely in the declaration.
Under certain conditions, the family home enjoys an inheritance tax exemption for the surviving partner. This does not mean every choice has the same fiscal effect. Other assets, the size of the estate and the division among heirs remain relevant. The best choice is therefore not automatically the largest immediate acquisition. Also have calculated what may happen at the death of the surviving partner and which flexibility remains during life.
A recognisable example
Suppose a married couple has a house, savings, and investments in their joint property. The surviving partner wants to continue living comfortably but also wants to maintain sufficient flexibility for the children. In that case, a combination of rights may be more suitable than taking everything outright in full ownership. The comparison is made based on amounts, needs, and the text of the deed, not by a general rule of thumb.
Look up the marriage contract, gather bank statements, property titles, debts and family composition, and do not wait until just before the declaration deadline. Recent deeds may possibly be accessible digitally via Izimi. Notariaat Wellens can clearly outline the permitted options, prepare the necessary deeds, and align the chosen execution with the declaration. Would you like personal advice? Make an appointment in good time.