Who inherits a house if one partner dies?
Cohabiting couples- contrary to married ones- do not, to a certain extent, have the same rights concerning inheritance: one could say no rights at all. However, there are several steps you can take so that the survivor, in case of the death of their partner, can keep a house they have bought together.
Non-married couples who buy a house or an apartment together are extremely common. Often, partners acquire what is called the ‘non-shared part’. At the moment of the death of one of the partners, their portion could return to their heirs. In the worst-case scenario, the surviving partner risks the sale of the house.
Why is it like this?
Legal partners only inherit from one another to a certain extent. The surviving partner only inherits the usufruct of a family home; they do not become its owner. The rest of the inheritance returns to the heirs of the deceased. Furthermore, the other cohabitant can withdraw this inheritance right. They can completely disinherit their partner by will.
How can you resolve this problem?
There are several methods to solve this problem so that the surviving partner can stay in the house in case of the death of their partner.
Make a will
Cohabiting couples can each make a will where they can stipulate that their part of the house be inherited by the surviving partner. It is not always possible that such a will can be carried out. It may be that a will like this violates the statutory rights of other inheritors (children, for example).
In addition, a will can always be modified. One partner cannot therefore be sure that the other has not changed their will over the years.
Choose an ‘accretion clause’
Partners can add an accretion or ‘Tontine’ clause to the will. In case of the death of one partner, their part of the estate is automatically acquired by the other partner and this (according to the selected clause), as the owner or the usufructuary. The advantage of this method is that the surviving partner is guaranteed to obtain their partner’s estate.
This clause cannot be easily changed (unlike a will). In addition, other inheritors cannot then oppose this on the grounds of their inheritance.
Financially speaking, how is this regulated?
If the accretion clause is applied, the surviving partner pays inheritance tax on the share they receive. This is 10% in Flanders and 12.5% in Brussels and Wallonia.
If the legal cohabiting partner inherits the property they are better off financially speaking. Rules for the payment of inheritance tax on a family home are also applicable for legal partners. In addition, legal cohabiting partners benefit from, in all three regions, an inheritance tax tariff equal to those of married couples.
In Flanders, cohabiting partners can also benefit from advantageous inheritance rights. In Brussels and Wallonia the situation is different. There, non-married partners pay the highest percentage of inheritance tax.
We note that depending on your specific situation, it is financially more or less advantageous to inherit than to obtain a part of the estate through an accretion clause.
Or, choose a clause with option
It’s preferable to choose an accretion ‘Tontine’ clause with option.
In this case the surviving partner will have the choice at the moment of the death of their partner. They can fall back on the clause, or dispute it and rely on the potential will or the legal right of succession. They can choose the most financially advantageous means. The help of a notary can also be useful.