In Belgium, Laeticia H. would be almost ruined!

In question: the protection that a 1981 law grants David and Laura, his fine child. For example, The problem is that this civil provision is not recognized by the taxman. Meanwhile, underlines the lawyer Gaëtan Van Elder, so that Laeticia H. For example, would be imposed on an almost double heritage of the one of which she really inherits. Nevertheless, It is necessary to remedy this anomaly which, to avoid an injustice, generates another, he says. Consequently,

A increasingly frequent reality. However, recomposed families pose various problems, most often mentioned is undoubtedly the protection of children from the first union. Therefore, The concern expressed is that they are not left out during the transmission of their parents’s heritage. In addition, They actually benefit from double protection through usufruct conversion.

Compulsory conversion – Belgium, laeticia h. would almost

The red thread of this belgium, laeticia h. would almost double protection is indeed the conversion of usufruct, explains Me Van Elder. Therefore, First point: the surviving husband benefits from a right of usufruct. Therefore, legal, testamentary or originating in a donation or a matrimonial advantage. Similarly, This usufruct protects him. Nevertheless, but could he, over time, threaten the interests of children from the first union of the deceased spouse? However. Similarly, these benefit from a protection measure: they have the right to require the conversion of the usufruct which is devolved to the surviving spouse, without the court having the slightest power to oppose it.

Second point: what does this conversion mean? Furthermore, “The conversion is the operation which leads to the surviving husband receives. in exchange for its right of usufruct, a part of the succession, a capital, the ownership of certain inheritance goods or, more rarely, an indexed annuity, explains Gaëtan Van Elder. This legal act takes belgium, laeticia h. would almost place in consideration of the age of the usufructuary and its life expectancy. Justice retains rates fixed according to the age and sex of the survivor.

20 more years!

However, that’s not all. Indeed. introduced by the law of May 14, 1981, the so -called “20 -year -old” rule constitutes a second protection of the interests of children from a previous union.

Concretely. it artificially ages the surviving spouse by attributing an age equivalent to that of the eldest of the deceased, increased by 20 years. Me van Elder illustrates his point by a Concrete example … which cannot leave anyone indifferent. Or the wife of a famous singer, Laeticia H., aged 42 on her husband. We assume, for the needs of the demonstration, that he died in Belgium. Laeticia is in competition with the two children, David and Laura H., from a previous union of belgium, laeticia h. would almost the deceased. The eldest, David, is 50 years old. At the request of David. Laura, the fictitious age of Laeticia was then increased from 42 to 70 years (50 + 20), for the conversion of the usufruct required by the Beaux-Children and for the fixing of the tax rate.

On this basis. the value of the usufruct of Laeticia, determined according to the latest conversion tables published in Belgian instructoris not 64.36% (the conversion rate corresponding to its real age) of the inheritance mass, but at 33.37%. On the deceased assets worth 100, Laeticia will therefore have rights of a value of 33.37% and its beings of 66.63%.

A deep injustice

If this rule finds its justification in a vocation of civil belgium, laeticia h. would almost equity. it induces on a tax plan a deep financial iniquity, underlines Me Van Elder.

“The tax administration does not take into account the legal fiction of 20 years when establishing the taxable database. For the needs of the calculation of the inheritance tax. it converts the usufruct of the spouse in consideration of its real age. According to the tax table devoted by article 21 of the code of inheritance rights. the converted usufruct is equivalent to a taxable basis of a height of 56% instead of 38% ‘of 20 years’ had been legitimately transposed. Founder of the Van Elder and Associates, which makes four criticisms.

Four arguments

First. inheritance rights are in essence due on the inheritance goods which are actually collected by the heir or the legatee, with exceptions specially framed by law. However, the surviving spouse is imposed here on a quota of belgium, laeticia h. would almost exorbitant assets which is not transmitted to him, namely 30.99% more (64.36% less 33.37%). Or almost double what he actually perceives!

Then. this discrepancy between the taxable basis retained by tax law and the value of civil rights actually attributed constitutes a violation of the principle of legality of tax, as soon as the administration deviates from the legal reality imposed by civil law, without taking place on the expression of an asserted will of the tax legislator in the opposite direction.

“Tertio. impose a taxpayer on a dedication of wealth which is acquired by third parties manifestly ignores the principle of contributory capacity, insists Gaëtan van Elder. The taxed tax is certainly no longer proportionate to the means and resources perceived by the surviving spouse. All the more so that this heritage returns to the Beaux-Nenfants without a scholarship. Confiscatory as soon as it leads to an indirect belgium, laeticia h. would almost taxation decorrelated from any heritage underlying.

Finally, Me Van Elder evokes the principle of equality and non-discrimination, which constitutes an essential safeguard in positive tax law. What is it? It simply consists in not treating differently from people in an identical situation. And, very logically, not to deal in the same way of people in different situations, without appearing a reasonable justification. “However. tax law does not operate any distinction between the spouse in competition with the descendants of a previous relationship and the spouse in competition with his own descendants. These distinct situations with masterfully different consequences on a civil. economic level are nevertheless treated, on a tax plan, in an identical way, without the slightest justification.”

Belgium, laeticia h. would almost

A rectification soon?

“In short. the happiness of the unusual descendants makes the misfortune of the surviving spouse, to the detriment of a reality and a belgium, laeticia h. would almost fiscal justice that the Belgian (and European) courts seized of this question should soon have at heart to restore,” he concludes.