The legitieme portie -- a real, confirmed statutory share
Unlike common-law countries with broad testamentary freedom, Dutch law under the Dutch Civil Code
(Burgerlijk Wetboek) protects a deceased's descendants through the “legitieme portie” -- a
statutory legal portion that cannot be fully overridden by a will. Only descendants qualify: children, and
grandchildren by way of plaatsvervulling (substitution) where a child has predeceased the testator. A spouse,
parent, or sibling is explicitly not entitled to a legitieme portie. The protected share equals half of what
that descendant would have received under the ordinary Dutch intestacy rules had there been no will -- so, for
example, a disinherited child who would otherwise have received a one-half intestate share can still claim
one-quarter of the estate as a legitieme portie.
The claim itself works differently from an ordinary inheritance share: a legitieme portie is a monetary
claim against the estate, not a claim to specific property, so a disinherited descendant generally receives a
cash payment rather than a share of a particular house or asset. The right must be actively asserted -- it is
not automatic -- and Dutch law requires descendants to claim it within five years of the inheritance opening
(or of becoming aware of the relevant facts), after which the right can lapse.
Why this framework does not touch assets located in India
The legitieme portie applies to a deceased's Netherlands-situated estate; it has no direct bearing on
immovable or movable property located in India. For a Netherlands-based person of Indian origin (or an Indian
citizen resident in the Netherlands) who dies owning property in India, the applicable Indian succession law
depends on personal law exactly as it would for anyone else -- the Hindu Succession Act, 1956 for Hindus,
Sikhs, Jains and Buddhists (relevant to much of the Hindustani-Surinamese-Dutch community, given its
historical roots); Muslim personal law for Muslims; and the Indian Succession Act, 1925 for Christians,
Parsis, and those relying on a valid will governing testamentary succession generally. An NRI in the
Netherlands drafting a will covering both Dutch and Indian assets should take independent advice in both
jurisdictions, since a single will attempting to cover both estates can create unintended conflicts between
Dutch forced-heirship rules and Indian personal law.
Obtaining a Succession Certificate or Probate from the Netherlands
Heirs based in the Netherlands seeking to access a deceased relative's Indian bank accounts, securities, or
movable assets typically need a Succession Certificate from the relevant Indian court (or Letters of
Administration/Probate where a will exists), and can pursue this through a Power of Attorney authorizing a
representative in India to file and pursue the application -- avoiding the need for the Netherlands-based heir
to travel to India for most stages of the process.
Common mistakes NRIs in the Netherlands make with succession matters:
- Assuming the legitieme portie applies to assets located in India -- it does not; Indian assets follow
Indian succession law regardless of Dutch forced-heirship rules.
- Missing the five-year window to actively claim a legitieme portie against a Dutch estate.
- Drafting a single will covering both Dutch and Indian assets without separate jurisdiction-specific
advice, risking conflict between Dutch forced-heirship rules and Indian personal law.
