FURTHER EXPLANATION · 2 MIN READ
What can a marriage contract arrange?
Under a separation of property regime, each spouse generally remains the owner of their separate assets. Spouses can also own assets together, such as a home or an account. A marriage contract can provide that the surviving spouse receives certain jointly owned or separate assets after the first death. An optional clause lets the surviving spouse decide whether, and to what extent, to use that possibility.
This is not an automatic transfer or a standard solution for every family. The wording of the clause, ownership of each asset, debts, children and the protection sought must fit together. The amendment is made by notarial deed.
Wat besliste de Vlaamse Belastingdienst?
The advance decision of 6 November 2026 concerned one couple married under a pure separation of property regime. They wanted an optional survivorship clause for jointly owned assets and an optional allocation clause for separate assets. Only after the death would the surviving spouse choose whether to use those clauses in whole or in part.
The tax assessment depended on a decisive condition. The clauses had to be civil-law valid matrimonial benefits with proprietary effect. The Flemish Tax Administration did not rule on that civil-law validity. In the situation described, the acquisition of movable assets was not taxed as an inheritance or gift. Partition duty could still be due for jointly owned real estate. The decision applied only to the stated facts and to inheritance and registration taxes.
One general example
As a general example, suppose spouses own a home together while each also has separate savings. Subject to conditions, an amended marriage contract can let the surviving spouse choose the protection needed. This is a possibility, not an automatic right or a prediction of the tax treatment in another case.
The choice can affect the surviving spouse, the children and the later estate. The origin of the funds, the ownership deed and any debts also remain important. The name of a clause alone is therefore not enough.
What should you bring to the notary?
Bring the current marriage contract, purchase deeds or other ownership deeds, a list of accounts and investments, details of debts and an overview of the family situation. Also note what you specifically want to protect: the home, disposable income, care costs or the surviving spouse’s freedom of choice.
Notariaat Wellens can then explain, asset by asset, who currently owns it, which clause may be legally suitable and which tax issue still needs separate assessment. This way, you choose not merely a technical term but an arrangement that fits your assets and family.