Both the children of the marriage as buitenhuwelijke or adopted children are heirs reservataire that can not simply disinherited and must obtain a reserved portion.
Through multiple marriages, quarrels in families, stepfamilies or other reasons, like a lot of people revise these principles or questioning
what are the possibilities?
When one has one child, then your child is only entitled to half of your estate by way of reservatair part. This means that you half of your estate in the presence of one child may donate freely or can bequeath (entertain at will).
If you have two children, is available on your part 1/3 and your two children together a reserve of 2/3. When three or more children, these three children have reservatair ¾ and has an available part of ¼.
Amount of the available parts so perfectly you can disinherit your kids.
Some people try to circumvent these rules by making their entire assets "liquid" which then powers are passed from one vault to another in disregard of the rights of children. You are forgetting that one says a black money circuit which creates this money a very dubious character going to lead with all the consequences of the tax consequences. In addition, the children would be through a criminal investigation and another one can prove.
However, no parent has a duty to keep its assets in position with a view to his estate for the benefit of his children. It is perfectly allowed to live on his last franc and thus bring proverbial in the grave.
To supplement a pension is often used to complete the construction of parking assets in real estate (ie, homes, real ??).
On the basis of this property, a perfect supplementary pension can be properly built up by the sale of these goods on annuity. When you thus have placed your assets in real estate, it is perfectly possible to offer for sale the goods to annuity which you will immediately receive a certain amount in sales and which is determined by one or more heads that the buyer as long as you live a monthly annuity payable. This annuity you can use to supplement your pension.
At the time of your death, the buyer will receive your property in full ownership and will extinguish the annuity.
Note that these annuities should be done on normal market conditions. When your children might prove later that the annuity was agreed at a ridiculous low condition, they could challenge the structure. To this end, it is recommended that you advance in such constructions seeks the opinion of a lawyer versed in asset management.
This will, if necessary in consultation with a solicitor can advise specifically.
Note that the purpose of such structures may not be the actual disinheritance of your children but merely supplement your pension, which is a legitimate aspiration.
see also: life annuity sale
OTHER METHODS TO DISINHERIT THE CHILDREN:
1. Live at
No one can hinder your ability to complete supper, causing the remaining legacy is reduced to a minimum? No one is under an obligation to maintain its ability to position and as long as you live your children against chunks nothing in the pie. This solution can of course does not help when you have a defined (ungrateful) child ponders the legacy rule to favor a another child or other children or heirs /
No one can hinder your ability to complete supper, causing the remaining legacy is reduced to a minimum? No one is under an obligation to maintain its ability to position and as long as you live your children against chunks nothing in the pie. This solution can of course does not help when you have a defined (ungrateful) child ponders the legacy rule to favor a another child or other children or heirs /
2. The sale or away from your ability to annuity results literally you opsoupeert money until the last day of your life. This can both movable and immovable assets, whereby you can give your capital to a bank that you grant in exchange an annuity.
3. Through marriage contract you can make important steps to organize the rights of children by the maximum award in the marriage contract to the surviving. But this solution is when the eerstervende dies after which additional measures must be taken. A marriage partner can also insert products in the community (to make a registration fee of 25 ?? .. using averblijvingsbeding (past lives inherits all) can the kids from the estate of the first dying exclude.
4. Through a life (?) You could previously said third also have to pay a capital, your partner, a particular child or a third party. These capitals vielenlen outside the estate the acquirer verkreef benefit from the insurance contract, which it paid capital is not taken into account to calculate the available reserve. The children paid premiums could be able to get charge but that an alleged disadvantaged child had the burden of proving that those contributions was disproportionate to the total assets of the deceased, proof that obviously is very difficult. The Constitutional Court, however, ruled that savings and investment products disguised as a life (esp. Branch 21 and Branch 23) did not result in the depletion of the reserves. For a discussion of this judgment , see below . This technique was often pierced doorprikt.t see the judgment of the court of first instance Mechelen 12/01/2011 , NJW 2011, 107 and note especially with talk of power brokers and alleged planners. This possibility was finally made impossible by the law of December 10, 2012 amending Article 124 of the Law of 25 June on the landverzerzekering concerning the reduction of the capital of a life insurance policy in case of succession. The new article 124 of the law on terrestrial insurance now reads:
"Art. 124. Contribution or curtailment in case of death of the policyholder.
In case of death of the policyholder, the insurance benefits in accordance with the Civil Code, subject to the reduction and, if the policyholder has stipulated explicitly, the contribution . ".
In case of death of the policyholder, the insurance benefits in accordance with the Civil Code, subject to the reduction and, if the policyholder has stipulated explicitly, the contribution . ".
5. Who moves abroad puts the Belgian inheritance out of the game, except for the real estate in Belgium. In some countries, such as in England, there is no reserve for the children. For the inheritance rules apply namely the inheritance of the place of death or the place where the immovable property is located. All this leaves a space to disinherit then own children if only for that immovable property situated abroad and what foreign inheritance law is applicable.
6. usufruct constructions
Realize your property or your ability and buy mere usufruct. After your death, the full ownership to the bare owner. During your life you enjoy the fruits of your movable or immovable property. The bare ownership does not fall into your estate.
7. Trust
The testator may establish a trust governed by foreign law where the goods and shall also be transferred abroad with the appointment of a trustee to be ordered to administer the trust in accordance with the wishes of the deceased person who can rule this reservataire heirs. When children share their reservatair against the decision of the trust holder claiming this command will not be executed if the trust is contained in countries that do not recognize the rights of reservatairen eg. Jersey.
Judiciary:
The Constitutional Court, however, ruled that savings and investment products disguised as a life (esp. Branch 21 and Branch 23) can not result in the depletion of the reserves.
constitutional Court 96/2008 of 26/06/2008 BS 03/09/2008
resume:
The Court says rules:
Article 124 of the Law of June 25, 1992 on terrestrial insurance contract violates Articles 10 and 11 of the Constitution, insofar as it leads in the case of a savings transaction by the testator in the form of an endowment insurance the reserve can not be invoked in respect of capital.
Article 124 of the Law of June 25, 1992 on terrestrial insurance contract violates Articles 10 and 11 of the Constitution, insofar as it leads in the case of a savings transaction by the testator in the form of an endowment insurance the reserve can not be invoked in respect of capital.
Text judgment:
The Constitutional Court,
composed of the chairmen M. Bossuyt and M. Melchior, and the judges P. Martens, R. Henneuse E. De Groot, L. Lavrysen A. Alen, J.-P. Snappe, J.-P.Moerman, E. Derycke, J. and T. Spreutels Merckx-Van Goey, assisted by the Registrar P.-Y. Dutilleux, under the chairmanship of President M. Bossuyt,
pointing after deliberation, the following judgment:
I. Topic of the question and procedure
By judgment of May 10, 2007 in the matter of Roger Lameire and Conny Lameire against Walter Lameire whose expedition lodged at the Court Registry on May 29, 2007, the Court of Appeal of Ghent ratified the following question asked:
"Does Article 124 of the law of June 25, 1992 on the Land Insurance Agreement articles 10 and 11 of the Constitution because it has the effect that, can not in the case of a savings transaction by the testator in the form of an endowment insurance, the reserve be invoked, even if the life insurance policy is a technical rewording of saving, where if the savings effort of the deceased rather was reflected by the purchase of securities or other savings, the reserve can be invoked though, they have a claim in other words to can set truncation? ».
(...)
III. Law
(...)
B.1. The question refers to Article 124 of the Law of June 25, 1992 on terrestrial insurance contract (hereinafter the Act of June 25, 1992) which provides:
"Art. 124. Contribution or curtailment in case of death of the policyholder.
In case of death of the insured, the premiums he has paid, not subject to transfer or truncation, except to the extent paid manifestly out of proportion to its financial position, in which case the contribution or the reduction may not exceed the amount of the due performance ".
This provision is included in" C. Rights of the heirs of the insured in respect of the beneficiary "of Section V« Rights beneficiary "of Chapter II "Life insurance contracts" title III "Individual Insurance» of the law of 25 June 1992.
B.2. The Court questioned about the existence ability of the aforementioned Article 124 of the principle of equality and non-discrimination because that provision would result depending on the nature of a savings operation of a policyholder, now deceased, the reserved portion of estate the testator who had done such a savings transaction, whether or not protected, so that may or may not be set to a claim for curtailment.
it has different treatment submitted to the Court relate, according to the respondent before the court on two categories of reservataire heirs : on the one hand, those who, when they have received a grant, subject to the rules of the contribution and the reduction and, on the other hand, those who as beneficiaries of a joint life insurance policy, are not subject to those rules, at least as regards capital .
What the terms "input" and "shortening" concerns
B.3.1. In Book III of the Civil Code, the concepts of ownership and shortening defined: the contribution in Title I "Legacies", Chapter VI "Distribution and contribution", Section II "Contribution" (Articles 843 to 869) and the reduction in Title II «donations inter vivos and wills" Chapter III "Available portion of the goods and truncation", section II "shortening donations and legacies" (articles 920 to 930).
B.3.2. Articles 843 and 844 (input) of determining the Civil Code:
- "Art. 843. Every heir who comes into an inheritance, must, even if it will accept under the benefit of inventory, do his heirs contribution of all amounts of the deceased, by donation inter vivos, provided directly or indirectly; He unless the gifts and bequests him be expressed in forward and making off inheritance or exemption of contributions "should not keep the gifts nor claim the legacies which he made by the deceased.
-" Art. 844. Even where the gifts and bequests made in making forward or free of consideration, the heir may retain them only when allocating the amount of the available area; the excess is subject to contribution ".
B.3.3. Articles 920, 921 and 922, first paragraph, (shortening) of determining the Civil Code:
- "Art. 920. Decisions, whether among the living or to the point of death, exceeding the available area may be shortened after the inheritance fall open to that part. »
-« Art. 921. Shortening decisions among the living can only be claimed by those to whom the law grants a reserved portion, and by their heirs or assigns; the donees, legatees and creditors of the deceased can not claim it shortening or benefits to enjoy. »
-« Art. 922. To determine the reduction, it forms a mass of all the goods that were present at the death of the donor or testator. The goods on which he has to donation among the living, are fictional attached thereto according to their condition at the time of the gifts and their value at the time of death of the donor. About all those goods is calculated after deduction of debts, the part about which he may have, taking into account the capacity of the heirs he left.
[...] ".
B.3.4. The deceased children are protected by establishing a reserved area ( "reserve") for which reservataire heirs which the testator can not dispose freely.
Article 913 of the Civil Code states:
"The gifts, either by deeds among the living, either by will, half of the assets of the disposer must not exceed, if he leaves only one child at his death; a third if he leaves behind two children; a fourth, if he leaves three or more ".
What the life and the protection of the heirs reservataire concerns
B.4. In parliamentary forthcoming provision at issue is explained as follows:
"Article 124 is intended for the case where the heirs of the policyholder, without obtaining the benefit, get together with the designated beneficiary to the inheritance.
To be such a case there are two possibilities.
First, if the designated beneficiary itself is one of the heirs of the policyholder, the issue should be regulated by the input to the legacy of the gift recipient has made to the body designated by the policyholder.
on the other hand, if the policyholder a benefit granted to the reserved portion, the question is whether, and to what extent, the [reservataire heirs] can exercise the gift contained in the insurance contract shorten.
Let us immediately note that the contingent consideration and shortening may relate solely the premiums paid and not on the sum insured, which never belonged to the assets of the policyholder. This solution was already enshrined in Article 43 of the Law of 1874.
Furthermore, in the design, according to the doctrine in this area, clarified that the rules concerning the contribution and reduction only apply to the premiums paid by the policyholder, in so far paid manifestly disproportionate to his financial situation.
Finally, when the sum of the premiums paid exceeds the amount of the sum insured, the contribution and reduction to that amount be limited "(Parl. St., Room, 1990- 1991, no. 1586/1, pp. 102-103).
B.5.1. In its opinion of February 18, 2005 the Insurance Commission points out that life insurance policies as savings or investment be reclassified in a number of recent judgments of courts:
"Some judges believe that the more flexible insurance products that have recently made their appearance on the market and targeting the savings of families not aleatory character anymore and that it is therefore no longer justified under the contracts granting the benefits granted by the life insurance regulations.
such judicial responses are generally observed when large sums in the form of premiums or regular premiums are invested by people of a certain age and profit from the contract to a third party is granted in case of death. At the time of death feel reservataire heirs are affected by this award, which they contribute to embezzling sums which should have been included in principle in the estate.
Article 121 of the Law of June 25, 1992, however, prevented them from of the clause for the benefit of third-party system, to assert their rights in the capital funds. Indeed, it is assumed that by the third collected capital has never belonged to the estate of the deceased.
Article 124 of the Law of June 25, 1992 makes it possible, however, for the heirs to request the reduction of the paid by the policyholder premiums, but only when the transfers made manifestly disproportionate to his financial situation.
to the sums do are paid under the agreement to return to the estate, some courts prefer a disqualification over the application of this provision, which strictly defined conditions attached "(Insurance Commission, February 18, 2005, DOC C / 2004/6, Advice" on the reclassification of life insurance contracts - Article 124 of the law of June 25, 1992 ", pp 1-2, www.cbfa.be. ).
B.5.2. In the same opinion the Insurance Commission examines the life in the light of the protection of reservataire heirs:
"The substantial amounts that can be invested in life insurance at purchase price or life insurance with free deposits and free redemption, raise questions about the protection of the reservataire heirs against what sometimes can be seen as a withdrawal of certain financial assets in the estate.
Article 124 of the law of June 25, 1992 states in this regard that in the event of death of the policyholder premiums he has paid, not to contribution or shortening its subject, except to the extent paid manifestly out of proportion to its financial position, in which case the contribution or the reduction may not exceed the amount of the due performance.
in other words, only the premiums are subject to contribution or curtailment and then only if they are clearly exaggerated. The capital escaped the claims of the heirs. Article 124 therefore focuses exclusively on the impoverishment of the assets as a result of the premium and deprives basically the heirs any claim to the advantage which the deceased policyholder has assigned one of his heirs or to a third party.
Since life always more like a savings product profiles, the question arises whether this protection is sufficient and that the reasons for the generosity that occurs escaped the succession through the favored, always plausible.
it is clear that the grace regime that was given to life through Article 124 of the law of June 25, 1992, and earlier by Article 43 of the law of June 11, 1874, which was inserted by the law of July 14, 1976, was justified was conceived by the fact that life as a normal act of precaution which involved a limited depletion of capital, because they usually took the form of the payment of regular premiums by a reasonable amount. This is no longer the case. There is now more variety than before. Some life insurance products, financial investments and absorb a huge savings that the reserve can seriously affect. It is therefore difficult to understand why the favor should be viewed differently than any other award without charge.
[...]
Article 124 therefore seems workable. This article does not provide adequate protection to the reservataire heirs "(ibid, pp 8-9..).
The Commission decided Insurance:
« [...] the Commission [was] of the opinion that unless the institution of inheritance reserve in question would be, the life in any form may be used as a means to sometimes extract significant sums of money to the succession.This was also the intention of the legislature in 1992, when he introduced the special regime of Article 124 "(ibid., P. 12).
B.6.1. Under Article 121 of the Law of June 25, 1992, the beneficiary of a life insurance policy by the mere fact of his appointment entitlement to insurance benefits.
Article 121 is applicable to the life of the rules on the stipulation on behalf of a third party. Before accepting favoring the right of the recipient is already part - albeit precarious - (... Parl St., Room, 1990-1991, No. 1586/1, p 101). His ability
As the capital collected by the payee never belonged to the assets of the deceased, Article 121 therefore prevents reservataire heirs may exercise their rights to the capital funds.
B.6.2. The relevant Article 124 provides for the possibility of transfer or reduction in the premiums paid by the policyholder in the case, but only on condition that these payments manifestly disproportionate to his financial position.
The capital as a result of the death of the policyholder the beneficiary is paid, however, does not return in the estate of the deceased policyholder and escaped the claim of the heirs.
B.6.3. Favor legislation at life by Article 124 has been granted - and previously under Article 43 of the Law of June 11, 1874, as amended by the Act of July 14, 1976 - was conceived was justified by the fact that life as a normal act of precaution which involved a limited depletion of capital, because they usually took the form of the payment of regular premiums by a reasonable amount.
b.6.4. However, at present this is not the case anymore. Some insurance products are genuine become financial investment instruments in which substantial savings are mobilized, with the result that the reserved area which must be guaranteed by law to the reservataire heirs, can be seriously affected.
This may lead to a result of a benefit by a policyholder only one or more of his children, to the exclusion of one or more other, non-beneficiary reservataire heirs in reality, to a greater or lesser extent, be disinherited.
b.6.5. It follows that the measure at issue can lead to disproportionate effects result in the treatment of different categories of reservataire heirs, whether they are or not the beneficiary of the life insurance of the deceased.
This applies all the more, now no justification exists to reservataire heirs , beneficiaries of a life insurance contract, otherwise treat as regards contribution and reduction, then reservataire heirs, beneficiaries of another charity, as a donation. The risk of damage to the reserved area is not so different in both cases that it would provide an objective and reasonable justification for, in the first case, reduce the input and the reduction to cases in which Article 124 in question provides.
B.7. The question must be answered in the affirmative.
For those reasons,
the Court
says rules:
Article 124 of the Law of June 25, 1992 on terrestrial insurance contract violates Articles 10 and 11 of the Constitution, insofar as it leads in the case a savings operation by the testator in the form of an endowment insurance, the reserve can not be invoked in respect of the capital.
Delivered in Dutch and French, in accordance with Article 65 of the special law of January 6, 1989, on public hearing on June 26, 2008.
composed of the chairmen M. Bossuyt and M. Melchior, and the judges P. Martens, R. Henneuse E. De Groot, L. Lavrysen A. Alen, J.-P. Snappe, J.-P.Moerman, E. Derycke, J. and T. Spreutels Merckx-Van Goey, assisted by the Registrar P.-Y. Dutilleux, under the chairmanship of President M. Bossuyt,
pointing after deliberation, the following judgment:
I. Topic of the question and procedure
By judgment of May 10, 2007 in the matter of Roger Lameire and Conny Lameire against Walter Lameire whose expedition lodged at the Court Registry on May 29, 2007, the Court of Appeal of Ghent ratified the following question asked:
"Does Article 124 of the law of June 25, 1992 on the Land Insurance Agreement articles 10 and 11 of the Constitution because it has the effect that, can not in the case of a savings transaction by the testator in the form of an endowment insurance, the reserve be invoked, even if the life insurance policy is a technical rewording of saving, where if the savings effort of the deceased rather was reflected by the purchase of securities or other savings, the reserve can be invoked though, they have a claim in other words to can set truncation? ».
(...)
III. Law
(...)
B.1. The question refers to Article 124 of the Law of June 25, 1992 on terrestrial insurance contract (hereinafter the Act of June 25, 1992) which provides:
"Art. 124. Contribution or curtailment in case of death of the policyholder.
In case of death of the insured, the premiums he has paid, not subject to transfer or truncation, except to the extent paid manifestly out of proportion to its financial position, in which case the contribution or the reduction may not exceed the amount of the due performance ".
This provision is included in" C. Rights of the heirs of the insured in respect of the beneficiary "of Section V« Rights beneficiary "of Chapter II "Life insurance contracts" title III "Individual Insurance» of the law of 25 June 1992.
B.2. The Court questioned about the existence ability of the aforementioned Article 124 of the principle of equality and non-discrimination because that provision would result depending on the nature of a savings operation of a policyholder, now deceased, the reserved portion of estate the testator who had done such a savings transaction, whether or not protected, so that may or may not be set to a claim for curtailment.
it has different treatment submitted to the Court relate, according to the respondent before the court on two categories of reservataire heirs : on the one hand, those who, when they have received a grant, subject to the rules of the contribution and the reduction and, on the other hand, those who as beneficiaries of a joint life insurance policy, are not subject to those rules, at least as regards capital .
What the terms "input" and "shortening" concerns
B.3.1. In Book III of the Civil Code, the concepts of ownership and shortening defined: the contribution in Title I "Legacies", Chapter VI "Distribution and contribution", Section II "Contribution" (Articles 843 to 869) and the reduction in Title II «donations inter vivos and wills" Chapter III "Available portion of the goods and truncation", section II "shortening donations and legacies" (articles 920 to 930).
B.3.2. Articles 843 and 844 (input) of determining the Civil Code:
- "Art. 843. Every heir who comes into an inheritance, must, even if it will accept under the benefit of inventory, do his heirs contribution of all amounts of the deceased, by donation inter vivos, provided directly or indirectly; He unless the gifts and bequests him be expressed in forward and making off inheritance or exemption of contributions "should not keep the gifts nor claim the legacies which he made by the deceased.
-" Art. 844. Even where the gifts and bequests made in making forward or free of consideration, the heir may retain them only when allocating the amount of the available area; the excess is subject to contribution ".
B.3.3. Articles 920, 921 and 922, first paragraph, (shortening) of determining the Civil Code:
- "Art. 920. Decisions, whether among the living or to the point of death, exceeding the available area may be shortened after the inheritance fall open to that part. »
-« Art. 921. Shortening decisions among the living can only be claimed by those to whom the law grants a reserved portion, and by their heirs or assigns; the donees, legatees and creditors of the deceased can not claim it shortening or benefits to enjoy. »
-« Art. 922. To determine the reduction, it forms a mass of all the goods that were present at the death of the donor or testator. The goods on which he has to donation among the living, are fictional attached thereto according to their condition at the time of the gifts and their value at the time of death of the donor. About all those goods is calculated after deduction of debts, the part about which he may have, taking into account the capacity of the heirs he left.
[...] ".
B.3.4. The deceased children are protected by establishing a reserved area ( "reserve") for which reservataire heirs which the testator can not dispose freely.
Article 913 of the Civil Code states:
"The gifts, either by deeds among the living, either by will, half of the assets of the disposer must not exceed, if he leaves only one child at his death; a third if he leaves behind two children; a fourth, if he leaves three or more ".
What the life and the protection of the heirs reservataire concerns
B.4. In parliamentary forthcoming provision at issue is explained as follows:
"Article 124 is intended for the case where the heirs of the policyholder, without obtaining the benefit, get together with the designated beneficiary to the inheritance.
To be such a case there are two possibilities.
First, if the designated beneficiary itself is one of the heirs of the policyholder, the issue should be regulated by the input to the legacy of the gift recipient has made to the body designated by the policyholder.
on the other hand, if the policyholder a benefit granted to the reserved portion, the question is whether, and to what extent, the [reservataire heirs] can exercise the gift contained in the insurance contract shorten.
Let us immediately note that the contingent consideration and shortening may relate solely the premiums paid and not on the sum insured, which never belonged to the assets of the policyholder. This solution was already enshrined in Article 43 of the Law of 1874.
Furthermore, in the design, according to the doctrine in this area, clarified that the rules concerning the contribution and reduction only apply to the premiums paid by the policyholder, in so far paid manifestly disproportionate to his financial situation.
Finally, when the sum of the premiums paid exceeds the amount of the sum insured, the contribution and reduction to that amount be limited "(Parl. St., Room, 1990- 1991, no. 1586/1, pp. 102-103).
B.5.1. In its opinion of February 18, 2005 the Insurance Commission points out that life insurance policies as savings or investment be reclassified in a number of recent judgments of courts:
"Some judges believe that the more flexible insurance products that have recently made their appearance on the market and targeting the savings of families not aleatory character anymore and that it is therefore no longer justified under the contracts granting the benefits granted by the life insurance regulations.
such judicial responses are generally observed when large sums in the form of premiums or regular premiums are invested by people of a certain age and profit from the contract to a third party is granted in case of death. At the time of death feel reservataire heirs are affected by this award, which they contribute to embezzling sums which should have been included in principle in the estate.
Article 121 of the Law of June 25, 1992, however, prevented them from of the clause for the benefit of third-party system, to assert their rights in the capital funds. Indeed, it is assumed that by the third collected capital has never belonged to the estate of the deceased.
Article 124 of the Law of June 25, 1992 makes it possible, however, for the heirs to request the reduction of the paid by the policyholder premiums, but only when the transfers made manifestly disproportionate to his financial situation.
to the sums do are paid under the agreement to return to the estate, some courts prefer a disqualification over the application of this provision, which strictly defined conditions attached "(Insurance Commission, February 18, 2005, DOC C / 2004/6, Advice" on the reclassification of life insurance contracts - Article 124 of the law of June 25, 1992 ", pp 1-2, www.cbfa.be. ).
B.5.2. In the same opinion the Insurance Commission examines the life in the light of the protection of reservataire heirs:
"The substantial amounts that can be invested in life insurance at purchase price or life insurance with free deposits and free redemption, raise questions about the protection of the reservataire heirs against what sometimes can be seen as a withdrawal of certain financial assets in the estate.
Article 124 of the law of June 25, 1992 states in this regard that in the event of death of the policyholder premiums he has paid, not to contribution or shortening its subject, except to the extent paid manifestly out of proportion to its financial position, in which case the contribution or the reduction may not exceed the amount of the due performance.
in other words, only the premiums are subject to contribution or curtailment and then only if they are clearly exaggerated. The capital escaped the claims of the heirs. Article 124 therefore focuses exclusively on the impoverishment of the assets as a result of the premium and deprives basically the heirs any claim to the advantage which the deceased policyholder has assigned one of his heirs or to a third party.
Since life always more like a savings product profiles, the question arises whether this protection is sufficient and that the reasons for the generosity that occurs escaped the succession through the favored, always plausible.
it is clear that the grace regime that was given to life through Article 124 of the law of June 25, 1992, and earlier by Article 43 of the law of June 11, 1874, which was inserted by the law of July 14, 1976, was justified was conceived by the fact that life as a normal act of precaution which involved a limited depletion of capital, because they usually took the form of the payment of regular premiums by a reasonable amount. This is no longer the case. There is now more variety than before. Some life insurance products, financial investments and absorb a huge savings that the reserve can seriously affect. It is therefore difficult to understand why the favor should be viewed differently than any other award without charge.
[...]
Article 124 therefore seems workable. This article does not provide adequate protection to the reservataire heirs "(ibid, pp 8-9..).
The Commission decided Insurance:
« [...] the Commission [was] of the opinion that unless the institution of inheritance reserve in question would be, the life in any form may be used as a means to sometimes extract significant sums of money to the succession.This was also the intention of the legislature in 1992, when he introduced the special regime of Article 124 "(ibid., P. 12).
B.6.1. Under Article 121 of the Law of June 25, 1992, the beneficiary of a life insurance policy by the mere fact of his appointment entitlement to insurance benefits.
Article 121 is applicable to the life of the rules on the stipulation on behalf of a third party. Before accepting favoring the right of the recipient is already part - albeit precarious - (... Parl St., Room, 1990-1991, No. 1586/1, p 101). His ability
As the capital collected by the payee never belonged to the assets of the deceased, Article 121 therefore prevents reservataire heirs may exercise their rights to the capital funds.
B.6.2. The relevant Article 124 provides for the possibility of transfer or reduction in the premiums paid by the policyholder in the case, but only on condition that these payments manifestly disproportionate to his financial position.
The capital as a result of the death of the policyholder the beneficiary is paid, however, does not return in the estate of the deceased policyholder and escaped the claim of the heirs.
B.6.3. Favor legislation at life by Article 124 has been granted - and previously under Article 43 of the Law of June 11, 1874, as amended by the Act of July 14, 1976 - was conceived was justified by the fact that life as a normal act of precaution which involved a limited depletion of capital, because they usually took the form of the payment of regular premiums by a reasonable amount.
b.6.4. However, at present this is not the case anymore. Some insurance products are genuine become financial investment instruments in which substantial savings are mobilized, with the result that the reserved area which must be guaranteed by law to the reservataire heirs, can be seriously affected.
This may lead to a result of a benefit by a policyholder only one or more of his children, to the exclusion of one or more other, non-beneficiary reservataire heirs in reality, to a greater or lesser extent, be disinherited.
b.6.5. It follows that the measure at issue can lead to disproportionate effects result in the treatment of different categories of reservataire heirs, whether they are or not the beneficiary of the life insurance of the deceased.
This applies all the more, now no justification exists to reservataire heirs , beneficiaries of a life insurance contract, otherwise treat as regards contribution and reduction, then reservataire heirs, beneficiaries of another charity, as a donation. The risk of damage to the reserved area is not so different in both cases that it would provide an objective and reasonable justification for, in the first case, reduce the input and the reduction to cases in which Article 124 in question provides.
B.7. The question must be answered in the affirmative.
For those reasons,
the Court
says rules:
Article 124 of the Law of June 25, 1992 on terrestrial insurance contract violates Articles 10 and 11 of the Constitution, insofar as it leads in the case a savings operation by the testator in the form of an endowment insurance, the reserve can not be invoked in respect of the capital.
Delivered in Dutch and French, in accordance with Article 65 of the special law of January 6, 1989, on public hearing on June 26, 2008.
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