Contribution, retrieval and option clause
Protecting together upon death.
Retrieving upon divorce.
Discover our guidance ↓To begin with
Your home is yours. You want to protect your partner if you pass away, but be able to take back the home in case of divorce. Separate agreements are needed for that. Below you can read how they fit together.
"Ask whether it aligns with your values, whether you have examined the consequences, and whether you are willing to take responsibility."
Your questions, step by step
Do you want to share an own asset with your spouse? We discuss what that means now and later, including if your situation changes.
Why do I go to the notaire for this?
A contribution via the marriage contract can change the financial position of both spouses. The notaire discusses ownership, loan and what happens in case of divorce or death.
How do I make a private home joint property?
Record ownership, origin and existing loan.
Discuss the desired contribution and possible retrieval.
Have the amendment of the marriage contract prepared and signed.
How does this proceed and how long does it take?
There is no fixed term. Property records research, the chosen matrimonial property regime and any bank queries determine the preparation.
Which documents should I provide to the notaire?
Prepare what you already have. You do not need to wait until your folder is complete to make an appointment.
Is a document missing or do you not know where to find it? Check the help for each document. We will discuss what the office can obtain for you and what you still need to provide yourself.
Where can I find this?
Provide the full text and any amendments. Look in your deed folder or Mijn akten. Not everything is digitally available; if necessary, indicate which office drafted the deed.
Where can I find this?
Search in your deed folder, Izimi or Mijn akten. Cannot find the deed? Provide the address, estimated date and possibly the previous notarial office; we will see how to request a copy.
Where can I find this?
Provide the complete version with date, attachments and later amendments. Do you not have this document or do you not know if it exists? Select “Help needed” and discuss it with the office.
Where can I find this?
Provide the report with date and name of the appraiser. If there is no valuation yet, do not order one without consultation: first discuss what valuation is needed.
Where can I find this?
Request the document from your bank or download it from your own online banking environment. State the date and file reference. Provide statements, never passwords or access codes.
These check marks only remain on the opened page and are not sent to the office.
Open the checklist: ready, need help or not applicableWhat does the notaire do and investigate?
- Who owns the property and what debts or compensations are involved?
- Does the contribution fit within the matrimonial property regime?
- When can a retraction take effect?
- What fiscal consequences and formalities are required?
We agree on which searches the office will conduct and which information you, your bank or another expert will provide.
What should I pay attention to before I sign?
Check which property is contributed, what happens with debts and when a retraction is possible. Have the concrete settlement upon separation explained.
Is a passage still unclear? Feel free to ask for an explanation with an example from your own situation. Only sign when you understand what you are agreeing to.
What else must I arrange afterwards?
Keep the deed and payment receipts. Align later investments with the new ownership arrangement.
Which practical tips can help me?
Paying off a home together is not the same as making it legally joint property.
What do these words mean?
- Contribution
- bringing a personal asset into the joint property under the agreed conditions.
- Retraction
- a contractual arrangement to take back a contributed asset under certain circumstances.
Where can I find more explanation or help?
You do not have to phrase your question in legal terms. Tell what concerns you, what you want to arrange and if an important date is approaching.
We will look together at the next step. We agree in advance on how the office will assist you and what costs are involved.
Ask your question to the officeMake an AppointmentDrawing up a marriage contractGeneral explanation for your preparation. The rules and documents that apply to you are determined based on your file.
On this page
Contribution and retraction in plain language
01
You contribute a personal asset into the joint property and agree on if, when and how it can return.
Contribution transfers an asset from your personal estate to the joint estate. A conventional retraction is a return path agreed in the deed. This path only opens upon the described event and according to agreed conditions.
Where does this protection end?
"The home used to be mine" is not by itself a guarantee of free return. The statutory retraction and a contractual retraction right differ. It also matters who dies first and whether the home has since been sold.
Relate it to your life: What must happen in case of a breakup, upon your death and that of your partner?
What does it mean to contribute a personal asset?
02
For example, you purchased a home before your marriage. By contributing it to the joint matrimonial property you change the position of that home in your estate arrangement. This is a real change of rights, even if your main intention is to protect your partner later.
A conventional retraction is a right of retraction you agree in the deed. You specify upon which event the contributor can take back the asset and under which conditions. It is not a button you can press anytime: the agreed event and conditions must occur.
Discuss the home, associated loan and later investments as one whole. The agreement between spouses does not automatically alter the bank's rights. Also, a retraction without payment for the asset itself does not necessarily resolve every compensation for renovations or repayments.
Will I get my contributed home back in case of divorce?
03
This does not follow solely from the fact that the home once belonged solely to you. The deed must contain an appropriate retraction rule and the conditions must be met. Have it clearly explained whether you take back the home itself or only have a right to a value, and which settlements apply.
The statutory retraction and a contractually agreed retraction are not the same. The legal arrangement upon division is not a general guarantee that you get your contributed asset back free of charge on top of your share. The value and any charge remain relevant. A conventional clause must therefore be read according to its own text.
What if the home has meanwhile been sold? Then the original asset no longer exists. Whether a replacement home or sales proceeds fall under the arrangement depends on the clause and proof of reinvestment. Therefore keep the entire chain of sale, receipt and new purchase.
Does it matter who dies first?
04
Yes. A clause can provide a retraction if the partner who did not contribute dies first. The contributor then gets his asset back under the agreed conditions. If the contributor dies first, a different result may be intended. It is incorrect to treat both situations as one automatic right of return.
A fictional example: Noor contributes her own home to protect her spouse. The deed provides retraction if he dies first. One must then examine how Noor exercises that right and which settlements remain. If Noor dies first, the separate arrangement for her spouse and heirs must be read.
VLABEL accepts, under specific conditions, a particular fiscal treatment of the conventional return of contributed real estate. That position is not a general tax exemption for every retraction, asset or wording. The correct clause, type of asset and event are decisive.
What does this mean in your situation?
05
Select your situation. You will find two fictional examples each time. They illustrate which questions matter; your own documents, family and assets will determine the outcome.
YOUR SITUATION
Single
If you are not married and do not contribute an asset to a matrimonial estate, this specific retraction does not apply.
Example 1: Can a gift to my child come back to me?
A single person wants to gift and requests that the gifted assets return if the child dies first.
What happens in practice?
With a gift you can agree that what is given will revert to you under certain conditions if your child dies first. This is called a return clause. This does not concern a property that you have made jointly with your spouse. We therefore need to establish which event causes the gift to revert and what applies if the gifted asset is no longer present.
Example 2: I contribute to a property of a family member.
A single person helps his brother with a renovation and wants to get his money back later.
What happens in practice?
If the brother must repay the money later, that intention must be clearly recorded, for example as a loan with repayment arrangements. If it is a gift, the giver cannot generally claim the amount back just like that. An arrangement to reclaim a family home from a matrimonial community does not help in this situation. The proof of payment and the agreed intention are decisive here.
What does this mean for your choice?
The same ordinary words can indicate different legal arrangements.
To pause and consider
Do you want to recover an item, have an amount repaid, or have a gift revert?
YOUR SITUATION
De facto cohabiting
De facto cohabitation does not create a joint marital estate of the spouses into which you can contribute via this instrument.
Example 1: Do I get back my higher contribution in case of a breakup?
When buying a home, one partner pays much more of their own funds, while the deed gives each a half share.
What happens in practice?
The deed states that each owns half of the property. The larger payment does not automatically change those shares. Therefore, it must be agreed separately whether the partner with the higher contribution still receives an amount back, when that happens and how it is calculated. This provides more clarity than merely noting who transferred how much.
Example 2: My partner moves into my home.
An owner wants the partner to contribute but retain the home in case of a breakup.
What happens in practice?
If the home remains entirely the owner's property, it does not first need to be reclaimed from joint ownership. But the partner’s contributions can lead to a financial settlement. Therefore, agree whether payments are for living costs, a loan, or something else. That way, each knows what a contribution now means if the relationship ends later.
What does this mean for your choice?
An agreement on repayment is not automatically a property right or inheritance right.
To pause and consider
What amounts does each person pay and what do you mean by “getting back”?
YOUR SITUATION
Legal cohabitation
Legal cohabitation does not make separate property joint as in marriage. The concrete ownership and agreements are the starting point.
Example 1: Can I take back my home if the cohabitation ends?
The home is entirely owned by one legally cohabiting partner. They ask if a reclaim is necessary.
What happens in practice?
The home has not become joint property simply through legal cohabitation. Therefore, there is no matrimonial contribution to reverse. However, the family home may be protected during the cohabitation and renovations or repayments made can raise questions of compensation. Ownership of the home and any repayment of contributions are therefore considered separately.
Example 2: We bought together but I paid the costs.
A partner wants to get the purchase costs back first when the cohabitation ends.
What happens in practice?
The person who paid more costs does not automatically recover those costs first just based on that payment. The partners must clearly specify which settlement they intend and document it appropriately. Ownership shares in the property and any repayment agreement are two different matters. So bring both the purchase deed and proof of your payments.
What does this mean for your choice?
The end of cohabitation does not automatically settle all financial accounts.
To pause and consider
Bring the property deed, the loan and proof of your contributions.
YOUR SITUATION
Married under the statutory regime
Separate property can be contributed to the community with an express agreement for reclaiming under a specified event.
Example 1: I want to protect my partner but get my home back on divorce.
A spouse already owns the home before marriage and is considering a contribution.
What happens in practice?
By the contribution, the home will henceforth fall under the joint matrimonial estate. If you want to get it back on divorce, the deed must describe when and how that can happen. For death, we make a separate arrangement: what must the partner then receive? A return on divorce does not automatically mean the same return applies if your partner dies first.
Example 2: What if we renovate with joint funds?
After the contribution, a major renovation is paid from the community funds. Later a divorce follows.
What happens in practice?
Even if the property reverts to the original owner under the deed, an amount may still have to be settled for the jointly paid renovation. The question “who gets the property?” is thus not the same as “who still has to pay something?”. The notaire examines the clause, investments, loan and value to consider those two questions side by side.
What does this mean for your choice?
An agreed reclaim differs from the legal reclaim that applies to the share. The fiscal treatment may therefore differ.
To pause and consider
Which event should trigger the reclaim, and which costs must still be settled afterwards?
YOUR SITUATION
Married with separation of property
This reclaim may become relevant if an asset is contributed to an additional joint part in your marital contract (an added internal joint estate, abbreviated TIGV). With purely separate ownership there is no such contribution to reclaim.
Example 1: My own home goes into an additional joint estate.
A spouse wishes to include protection for the other through an additional joint part in your marriage contract (an added internal joint estate, abbreviated TIGV), but to reclaim the home upon divorce.
What happens in practice?
In a separation of property regime, the home can be included in an added internal joint estate, abbreviated TIGV. This is an additional joint part in the marriage contract. If the original owner wants to reclaim the home upon divorce, that return path must also be arranged. In case of death, we examine separately what the surviving spouse receives. An asset that has already been returned according to a reclaim arrangement cannot be divided again as joint property.
Example 2: We sell and purchase another home.
A home with a reclaim clause is sold. The proceeds go towards a new home.
What happens in practice?
The original agreement may mention only the home sold. Whether it also protects the new home depends on the text and the evidence that the proceeds were invested therein. Therefore, keep the deed of sale, bank statements and the new purchase deed together. The new loan and ownership shares must also fit the intended arrangement.
What does this mean for your choice?
A reclaim does not automatically release a co-borrower in relation to the bank. For real estate and movable goods, the tax treatment must be examined separately.
To pause and consider
Do you want the asset itself back, its value, or a calculated amount?
What must you explicitly have recorded?
06
- Specify the three scenarios.
Ask separately about divorce, your death and your partner's death.
- Ask about investments.
Who carries the loan and what happens to jointly paid renovations if the asset is reclaimed?
- Think about a later move.
Have it explained whether and how the arrangement follows a replacement asset.
- Avoid a general promise.
Have the exact reclaim and its financial consequences explained based on your own deed.
What do I ask the notaire?
07
You do not need to memorise these terms. Bring the questions that suit you. Feel free to ask to see the answer with your own home, your money and the people you want to protect.
Click on a question for an initial explanation or practical tip. You do not need to have an answer to everything yet.
When do I get the home back, and do I have to pay anything for it?
Have the event, value and possible settlements clarified. Getting something back does not always mean without payment.
What happens with jointly paid renovations and the loan?
Ask who must still carry which amounts after reclaim and whether the bank must separately agree.
Does the agreement also work if we replace the home later?
Ask which wording and which evidence are needed to follow the reinvestment.
Is the outcome different if I die first than if my partner dies first?
These two situations must not remain unaddressed when protection upon death is your intention.
The details that make a difference.
FOR THOSE WHO WANT TO READ FURTHER
View the conditions, possible variants and legal basis for your question.
What changes now, upon divorce and upon death?
| Moment | Agreement to be recorded |
|---|---|
| During the marriage | A described own asset is contributed to the community or to a suitable TIGV. |
| Upon divorce | An explicit agreement determines if and how you get the contributed asset back. This can be through a reclaim clause or a condition that reverses the contribution. |
| Upon Death | For the assets that remain in the joint part, the choice clause determines which rights the surviving spouse may select. |
This combination can, for instance, be discussed when one spouse owns a home that the couple uses as their family home. Protection upon death does not have to mean they want the same division upon divorce. Both intentions can be distinguished.
Do I get my asset back automatically?
Expressly stipulated reclaim upon divorce
The marriage contract can link the contribution to a resolutory condition (an agreed event that annuls the previous arrangement) or an appropriate right of retraction clause. Determine whether the retraction operates automatically or requires a choice, on which event it depends and how it is established. A de facto separation is not automatically the same as a divorce.
The statutory right of retraction is something different
Article 2.3.53, § 4 of the Civil Code allows for the retraction of contributed goods still present in kind (the item itself is still available) upon division, with attribution to the share at the value at the time of division. You therefore do not receive the good simply free of charge on top of your share. This statutory rule also does not apply to goods that you both contributed jointly.
Source: Art. 2.3.53, § 4 Civil Code.
For contributed immovable property, SP 15059 accepts that a retraction conventionally provided for upon divorce or prior death of the non-contributing spouse is the fulfilment of a resolutory condition, without registration or inheritance tax on that reversion. Any payment to the other spouse does not alter this position according to the stance. This stance excludes the mere statutory retraction of article 2.3.53, § 4 Civil Code.
Source: SP 15059, decision 22 May 2023, publication 20 June 2023.
What happens in case of death?
If only divorce is foreseen as the resolutory event, the contribution generally remains intact upon death. An appropriate choice clause can then operate on the contributed assets.
Do you also want retraction if the non-contributing spouse dies first? Then that is an additional choice. The retracted good cannot at the same time be divided as community property under the choice clause. The order of retraction, compensations and choice must therefore be unambiguous.
Distinguish three situations in the deed: divorce, death of the contributor and death of the other spouse.
VB 24015 of 14 May 2024, published on 1 July 2024, assesses contributed immovable property in a TIGV with resolutory conditions for divorce and prior death of the non-contributor. VLABEL accepted the fiscal return in that file and saw no abuse. That decision concerns the described facts and does not confirm a universal model clause.
Source: VB 24015, paragraphs 11–15.
What if our situation changes later?
The good itself, its value, or both?
Do you want the good itself back or a monetary settlement? Decide what happens if the good is no longer present, changes in value or cannot simply be returned.
Sale and reinvestment
If the home is sold and another home acquired, retraction does not automatically follow every new purchase. Describe the desired substitution of assets and keep evidence of the money flows.
Renovations and repayments
Who pays for renovations or loans during the marriage? Determine whether the community or the other spouse receives compensation upon retraction and how it is valued. Retraction does not automatically erase all reckonings (amounts still to be settled between you).
Debts and the bank
The agreements between spouses must be distinguished from the rights of the lender. A retraction does not automatically release the other spouse from an incurred credit obligation.
Children and previous gift conditions
Check whether a donor has excluded the contribution. Then look at the protection of common and non-common children upon allocation after death. The combination of contribution and choice clause is not automatically inviolable.
Source: Arts. 2.3.44–2.3.46, 2.3.53 and 2.3.57–2.3.58 Civil Code.
Do I still have to pay tax then?
That the tax authorities accept an agreed retraction does not mean that all other steps are tax-free. Upon death, allocation via the choice clause may fall under article 2.7.1.0.4 VCF. The family home exemption has its own conditions. Also a combination of legal acts can be tested against article 3.17.0.0.2 VCF.
For movable goods the concrete reversion must be qualified separately. SP 15059 explicitly deals with contributed immovable goods and is not a general ruling for every movable clause.
Source: Flemish Tax Codex, consolidated text.
Frequently Asked Questions
FROM READING TO PREPARATION
Already a first answer.
Must I first find all the documents?
You can already ask your question with what you have. Note which agreements you remember and what has changed since. Using the checklist on this page, you can see what to gather and what still needs to be discussed with the office.
How do I prepare a conversation with my relatives?
First explain what you want to achieve or avoid. Give everyone space to express expectations and practical limits. Note what you agree on and which questions remain open, so that the conversation also takes into account who bears the consequences.
What if I am unsure between different solutions?
Write down for each option what you hope to achieve and what you do not yet understand. Bring existing documents. The consultation is meant to compare possibilities and consequences with your own situation before making a choice.
EASY PREPARATION
Your checklist: contribution and retraction of assets
Which documents do you prepare, where do you find them and when can the office assist? Indicate what you have and where you need support.
Useful websites on this topic
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