Choice clause in the statutory regime
Can my partner later
personally decide what is necessary?
Discover our guidance ↓To begin with
You do not know today what your partner will need later. With a choice clause you establish the possible options now. After the death of one of you, the other can choose from those options, within the limits of the deed.
"Taking time is not indecision when the consequences last longer than today's pressure."
Your questions, step by step
A choice following the death of your partner can be difficult. We explain what your marriage contract allows and how much time you have to decide.
Why do I go to the notaire for this?
A choice clause in the marriage contract can provide the surviving spouse with various options. The existing text determines what is possible and within which timeframe.
What can I choose if my spouse dies?
Have the entire marriage contract reviewed.
Map out the assets, debts, and needs of the surviving spouse.
Compare the consequences and record the choice in the required manner.
How does this proceed and how long does it take?
The deadline derives from your contract and the concrete settlement. Do not wait after a death until the tax declaration deadline is nearly passed.
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?
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 what you already have from the municipality, bank or notaire. If a document is missing, provide the name, date and place of death. The office will check what it can obtain itself.
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?
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.
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?
- What choices does the complete contract allow?
- What deadline and form does it prescribe?
- Which assets and debts are included?
- What do the options mean for the surviving spouse, children and taxes?
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 assets the choice concerns and what each option means for income, children and inheritance tax. A choice clause does not automatically execute every desired option.
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?
Coordinate bank instructions, real estate formalities and declarations with the established choice.
Which practical tips can help me?
Ask for at least two concrete scenarios, with the consequences both upon this death and upon a later death.
What do these words mean?
- Choice clause
- a contractual option for the surviving spouse to choose from certain property arrangements.
- Surviving spouse
- the spouse who outlives the other.
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
Choice clause in plain language
01
You record possible choices. The surviving partner chooses later within the limits of your marriage contract.
Consider a list of choices that you prepare together in advance. After the first death, the surviving spouse can choose what suits their needs at that time: for example, more ownership or certain usage rights. Only goods and choices permitted by the deed appear on that list.
Where does this protection end?
It is not a choice about everything the deceased owned. Separate assets may be excluded from the clause. Receiving more is not automatically advantageous for tax purposes. A choice clause before death does not automatically apply in the event of divorce.
Relate it to your life: What freedom might your partner need later to continue living there or to move?
What choice are you preparing today?
02
With a choice clause, you agree in your marriage contract what the surviving spouse may later choose from a certain marital estate. You can compare it to a pre-agreed choice list. The list is fixed today; the choice only happens when the event in the deed occurs, usually the death of a spouse.
This does not automatically mean you give all your assets to your partner today. The deed determines which assets fall under the clause and which rights can be chosen. Think of more assets in full ownership, or a combination with usufruct. A family home that remains outside the involved estate is not automatically on that choice list.
Cohabitants cannot simply use the same matrimonial clause. With separation of property, it must first be considered which appropriate joint part or other permitted construction the agreement can connect to. The clause must fit your actual ownership.
What if our marriage ends in divorce?
03
A choice clause for death does not automatically provide the same choice power upon divorce. In case of a break-up, the rules for the settlement of your matrimonial system and the clauses agreed upon for that apply. So read separately what is written for death and what is written for divorce.
If you have separated but are not yet divorced, a death may still affect the existing arrangement. Some deeds exclude benefits as soon as a divorce procedure is underway or upon a described factual separation. You cannot assume that such an exclusion is in your deed. Also have the consequences for wills and powers of attorney reviewed.
How does the surviving spouse make a usable choice?
04
The surviving spouse first considers what is needed: staying in the home, being able to sell it independently, maintaining sufficient income, or already giving children assets. Then the permitted choices from the deed are weighed against those needs. The term, the form of the choice and the outcome if no choice is made are also stated in or follow from the arrangement.
Full ownership generally provides more freedom over an asset than usufruct. With usufruct, the surviving spouse receives use and income, while for example the children hold the bare ownership. To sell full ownership, their cooperation is normally required. More control can simultaneously have other fiscal consequences.
A hypothetical example: the surviving partner wants to remain in a spacious home but expects to move within a few years. Only rights of use may seem sufficient today. Yet it is necessary to consider who will decide on the sale later and who will receive the sale proceeds. The best choice is therefore not automatically the option with the lowest tax upon first death.
Children from a previous relationship may have special protection rights against marital benefits. Debts and the assets remaining after the second death also belong in the comparison. A choice clause is not a promise that everything will pass tax-free or without claims from children.
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, you do not have a spouse who can choose under this marriage clause. Another arrangement may sometimes approximate your intention.
Example 1: Can my girlfriend later choose what she needs?
A single person wants to support a girlfriend but does not yet know whether she will mainly need money or housing security later on.
What happens in practice?
A marriage contract regulates agreements between spouses. The girlfriend therefore cannot choose via this marriage clause. A will can, however, specify what she receives and, where legally possible, what choices she has. We then start with her possible needs: an amount to pay costs, a right to reside or other rights. The chosen arrangement must clearly set out those possibilities.
Example 2: Can an extrajudicial protection mandate distribute my inheritance?
A single person wants to allow his son to decide which assets the family will receive after his death.
What happens in practice?
The son can arrange certain matters for his parent during their lifetime using a mandat de protection extrajudiciaire. This mandate does not grant him general authority to distribute the inheritance at his own discretion after the death. The parent must make a separate arrangement for that, for example in a will. The first question is therefore: do I want help with my decisions today, or do I want to decide who receives something later?
What does this mean for your choice?
Giving your son permission to pay your invoices helps you during your lifetime. Leaving something to your girlfriend determines what she receives after your death. Different arrangements are needed for these two wishes: one arrangement does not replace the other.
To pause and consider
Do you want someone to act during your lifetime or to receive something after your death?
YOUR SITUATION
De facto cohabiting
Cohabitation de facto does not provide access to this choice clause within a joint property of spouses.
Example 1: Can we make the same agreement as a married couple?
Two partners living together de facto own a home and want the surviving partner to be able to choose later.
What happens in practice?
For unmarried partners, a will and a mandate de protection extrajudiciaire / extrajudicial protection mandate can offer different solutions. With a will, each person determines what the other will receive later; this can in principle still be changed. With a mandate de protection extrajudiciaire, you conclude a mutual agreement regarding certain assets. An option means that the surviving partner can choose, under agreed conditions, to apply that arrangement. That commitment and the conditions must align with what you want together.
Example 2: Is a joint account sufficient as common property?
Partners save in one account and believe they can apply a choice clause for spouses to it.
What happens in practice?
A joint account means that money is held together, but it does not make you spouses with a joint matrimonial property regime. First, it is determined which portion of the money belongs to whom. Afterwards, you can agree what the partner should receive upon death, for example via a will. The name on the account does not replace that agreement.
What does this mean for your choice?
An optional mandate de protection extrajudiciaire is a different instrument than the matrimonial choice clause.
To pause and consider
What should the surviving partner be able to choose and why?
YOUR SITUATION
Legal cohabitation
A declaration of cohabitation légale / legal cohabitation does not make you married. Therefore, this choice clause does not operate solely based on that declaration.
Example 1: My partner also wants to be able to choose the savings.
Legally cohabiting partners want to give the surviving partner more than the limited statutory protection of the home and household effects.
What happens in practice?
Legal cohabitation does not automatically grant the surviving partner the right to all savings. If you want your partner to also be able to pay daily expenses, a will can assign money or other rights for that purpose, within legal limits. The matrimonial choice clause does not work here: there is no matrimonial property from which the partner can choose in this way.
Example 2: We are considering marriage. Does that change the possibilities?
A couple wants to know if marriage better suits the desired protection.
What happens in practice?
When marrying, you also choose how your assets are arranged. Within an appropriate arrangement, a choice clause can give the surviving partner options later. But marriage changes more: also obligations during the marriage and settlement upon divorce. Therefore, we first compare the desired protection with the full consequences of marriage, not just with one attractive clause.
What does this mean for your choice?
Do not choose your relationship form solely to be able to use one clause.
To pause and consider
What protection are you seeking that your current documents do not yet offer?
YOUR SITUATION
Married under the statutory regime
A choice clause can provide an option regarding the involved community property, according to the precise deed.
Example 1: Can my partner choose to keep the home?
A couple has a common home and children. They are unsure if the surviving partner will want to continue living there or to move later.
What happens in practice?
The choice clause can, for example, determine which rights the surviving partner may select regarding the common home. Full ownership offers different options than usufruct alone, which allows one to live there or receive rent. What is necessary may be clearer at the time of death than today. The deed sets the options in advance; at the time of choice, the consequences for children and taxes are also considered.
Example 2: Does my inherited apartment also fall under the choice?
A spouse inherited an apartment. The couple already has a choice clause for the community.
What happens in practice?
The inherited apartment is in principle separate property. Thus, it does not appear on the choice list if the clause covers only the community property. The owner might consider making the apartment communal or giving rights to the partner via a will. These are different paths. Making it communal also changes the asset relationship during marriage and may have consequences at divorce.
What does this mean for your choice?
Check who makes the choice, by when, in what form, and what happens if a choice is not possible. There is no universal deadline for every deed.
To pause and consider
Which assets must the surviving partner be able to retain or manage independently?
YOUR SITUATION
Married with separation of property
With separation of property, each person generally keeps their own assets. If you want to give your partner choices later concerning the home, we first look at whether that home belongs to one of you or whether you each have a share. Only then do we select the appropriate agreement.
Example 1: Can we only regulate the home jointly?
A couple with separation of property wants only the home to be under a joint arrangement.
What happens in practice?
With separation of property, each generally has their own assets. For certain goods, such as the home, you can agree on an additional joint part in your matrimonial contract. This is called an added internal joint ownership, abbreviated TIGV. You do not need to combine all your possessions for this.
For that home, the deed can then determine which choices the surviving partner receives. Consider, for example, who may continue living there and who may decide on sale later. The separate savings account that remains outside that joint part does not fall under the same choice by this agreement alone.
The other side should also be part of the discussion: what changes today regarding rights to the home, and what does each receive upon divorce? Discussing only protection upon death would not give you a complete picture.
Example 2: We want to keep everything separate. Are there still other possibilities?
The spouses want to keep their assets separate but want the surviving partner to have more rights.
What happens in practice?
Spouses do not necessarily have to make assets joint to better protect each other. A will can, for example, determine the rights of the other on separate property, within legal limits. Other agreements in a matrimonial contract can also be relevant. We then concretely compare who will later be owner, who may live there, and who can sell. This clarifies what each solution does without first needing to know all legal terms.
What does this mean for your choice?
Owning half of a home each together is different from putting that home under a joint arrangement in your matrimonial contract. The rules for division and inheritance can therefore differ. Have the civil-law notary specify on your own deed which situation applies to you.
To pause and consider
Do you want to make something communal, or only adjust the consequences upon death?
Four questions to understand the clause
06
- Which assets are listed?
Request a summary in plain language, linked to your current ownership.
- Who can sign later?
Discuss how a choice is made if the surviving partner can no longer act themselves and whether your mandat de protection extrajudiciaire connects to that.
- What if I make no choice?
Have the term, the standard outcome and the manner of recording explained.
- What remains for later?
Compare housing security, freedom of decision and the consequences for children on both deaths.
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.
Which of our assets actually fall under the choice?
Request to have them identified in your own asset overview. A main home or bank account can fall outside the clause.
Can the surviving partner later decide independently about the home?
Discuss staying in the home, renting it out and selling it separately. Those options do not always require the same rights.
What happens if the surviving partner cannot choose in time or cannot choose themselves?
Have the term, the standard outcome and any representation explained.
What does each choice mean for our children and the tax?
Also ask about the second death. What remains then may have a different destination.
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 can the surviving partner choose?
You now agree on what your partner may later choose from. For example, which joint assets your partner can receive to keep living there or to have enough money available. That choice happens first within your marital property. Afterwards the division of the inheritance follows.
Source: The choice clause.
| Option in a suitable clause | Consequence to discuss |
|---|---|
| Certain assets in full ownership | More autonomy over those assets; less property that at the first death passes to the children. |
| A limited additional award | The surviving partner obtains what is necessary; the other assets follow the remaining matrimonial and inheritance law arrangement. |
| Usufruct or a combination of rights | Use and income can be secured, but management, sale and transformation require precise agreements. |
| No additional choice exercised | The fallback arrangement in the deed determines the outcome. Therefore, doing nothing also has consequences. |
Can my partner choose everything?
A choice clause for the community does not automatically include an inherited home or other own assets. If considered as contribution, the consequences during the marriage and on divorce must also be examined.
Have each option assessed to see which rights the children retain. For mutual children, the origin of the contributed assets is particularly relevant. Are there children from a previous relationship? Then wider benefits for your partner under the gift tax rules may apply. That does not automatically invalidate the entire arrangement. However, it must be calculated whether the protected share of those children is affected.
Which tax can my partner pay?
Does your partner receive more than half of the joint assets through the marriage contract? Then inheritance tax may be due on that amount. Article 2.7.1.0.4 of the Flemish Fiscal Codex (VCF) regulates this for marriage agreements that do not fall under gift tax rules. After that, it is examined whether, for example, the exemption for the family home applies. That exemption has its own conditions.
Also compare the later estate of the surviving partner. More full ownership can provide practical peace of mind but may increase the assets that will later be inherited again. A fiscal comparison must consider both deaths, the family situation and the chosen assets.
How does my partner make that choice?
Record who makes the choice, within what time frame, in what form, and what happens if the surviving partner cannot choose. There is no uniform choice period that you can apply to every deed. Coordinate possible representation with the extrajudicial protection mandate and any conflicts of interest.
Make a clear distinction in execution between the surviving partner's own share and the share on which an additional right is exercised. In Ghent, 18 May 2021, 2020/AR/823, it was emphasised that the deed of succession executes the marriage contract and does not amend it. The summary published by VLABEL lists the ruling as final.
Source: Ghent 18 May 2021, 2020/AR/823: execution of a choice clause.
Which statutory rules apply?
For the civil law construction, articles 2.3.52 BW (permitted deviations), 2.3.55 BW (advance payment) and 2.3.56 BW (unequal distribution and usufruct) are relevant. The precise technique follows from the deed. The child protection provisions of articles 2.3.57 and 2.3.58 BW must be assessed separately. A choice clause is not a contract of chance for which equal contribution and similar life expectancy must be demonstrated.
Source: Civil Code, Book 2, Title 3: property regimes between spouses.
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: drafting or exercising a choice clause
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
RELIABLE CONTINUED READING
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FROM FIRST QUESTION TO NEXT STEP
You do not have to figure it out alone.
First your situation
Explain what is happening, who is involved and what you want to avoid.
Weighing possibilities
We discuss your questions, the available documents and the consequences of possible choices.
Your Next Step
We record what you want to have prepared and what follow-up is appropriate.
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