Usufruct in an inheritance
5 July 2023
Who inherits the usufruct?
In Belgium, the surviving partner inherits the usufruct (over which goods exactly depends on the chosen form of cohabitation).
- De facto cohabiting partners have no legal inheritance rights.
- Legally cohabiting partners inherit, according to the law, the usufruct of the family home and household goods. Through a will, they can limit or expand that inheritance right.
- Married partners inherit legally the usufruct of the entire estate. In addition to the usufruct of the family home, they inherit the usufruct of, for example, accounts or the usufruct of second homes, etc.
In the case of married partners, the surviving spouse thus obtains the usufruct over the entire estate of the deceased spouse when inheriting with their children.
The children inherit the bare ownership of the estate, each for an equal share.
What does the right of usufruct entail?
Usufruct (Latin ‘usus’ is the use, and ‘fructus’ are the fruits) is the right to use a property and receive its fruits. For example, usufruct of a home means the concrete right to live in the house, use the household goods, or even rent out the house and receive rental income. Usufruct of bank accounts, on the other hand, is the right to enjoy the interest.
Usufruct in an inheritance: a double-edged sword
Usufruct provides the surviving spouse with a sense of security and financial stability. Usufruct for the surviving spouse is a lifelong right and only extinguishes at the time of death.
However, the usufruct of the surviving spouse also has a downside. The children/the bare owners cannot enjoy the goods as long as the usufructuary is alive. They must tolerate the usufruct. They will only be able to dispose of the goods (sell, rent, donate) when they become full owners.
The forced relationship between the usufructuary and the bare owners can cause practical problems and family unrest, especially in blended families. This is often the case when the usufructuary inherits with the children from a previous marriage of the deceased partner, for example, when stepmother and stepchildren inherit.
“In settling an inheritance, the relationship between the surviving spouse and the children from a previous relationship (stepchildren) often comes under pressure. It is important to acknowledge these emotional tensions and promote open communication in the search for solutions.” – Mr. Charlotte Van der Gucht, Family Law Attorney
Conversion of usufruct: a way out of the impasse
To overcome this impasse, usufruct can be terminated through conversion. Both the children and the surviving spouse have the right to request the conversion of usufruct. Through conversion, usufruct is, in a way, bought out.
“The conversion of usufruct offers an opportunity to restore the relationship between the usufructuary and the bare owners and solve practical problems.” – Mr. Charlotte Van der Gucht, Family Law Attorney
Consequences of conversion: new ownership relations
With conversion, the children become full owners of the goods for which conversion was requested, while the surviving spouse receives a sum of money or interest in exchange for her usufruct. It is important to note that the consent of the surviving spouse is always required for the conversion of usufruct of the family home.
However, the deceased spouse can prohibit by will the heirs from requesting the conversion of usufruct, except for:
- The children from a previous marriage of the first deceased spouse; they can always request conversion.
- The surviving spouse always has the right to request the conversion of usufruct of the family home.
Valuation of usufruct
To realize the conversion of usufruct, its value must be determined. If parties agree, they can jointly determine the value of usufruct. In the absence of an agreement, calculation methods ensure an objective valuation. Factors such as the gender and life expectancy of the usufructuary play a crucial role.
Our experts, your reliable partner
Our inheritance law experts understand that settling an estate involves emotional, financial, and technical challenges. The forced relationship between the usufructuary and the bare owners is particularly delicate. When settling an estate, we pay attention to all aspects of the case, both emotional, financial, and technical, to arrive at a sustainable solution.
Are you looking for reliable and expert support in settling an estate? Contact us today. We are happy to help you understand the complexity of usufruct and estate settlement and find the best possible solutions.