"Given is given," or is it not? On the revocability of gifts between spouses
Can you think of yourself as a donor?
What if, as a donor, you regret a gift you made because you no longer have an affective relationship with the donee? Can you then revoke this donation? In Belgian law, the adage: "given is given". Therefore, the donated goods will in principle final and irrevocable Leaving your assets so that you cannot conceive as a donor.
However, there is an important exception to this, being donations between spouses. The aforementioned donations are fundamentally revocable based on Art. 4.240 of the Civil Code (unless they were made in a marriage contract). That is, the donor-spouse can withdraw from the gift at any time without justifying it or paying inheritance tax.
However, spouses can only own goods donate away and not goods that are part of the joint assets. Moreover, the above does not apply to de facto and/or legal cohabitants between whom gifts are always irrevocable.
Why should spouses make gifts to each other?
In the context of estate planning this can be interesting. This is because the spouse-giver has the option to revoke the gift when the spouse-giver dies first. This is provided that the donated funds are not already commingled and on a separate bank account were deposited.
As a result, this gift will fall outside the estate and you will not have to pay inheritance tax on its value. It is also a way to provide additional protection for your partner when there is a large imbalance between the assets or when a gift to the children is not yet an issue.
Given the tax consequence of the right of withdrawal, VLABEL has already tried to qualify this as a tax abuse on several occasions. However, this cannot be accepted since case law accepts that the civil law consequences of the right of withdrawal also have a tax impact.
Can spouses exclude revocability?
The right of withdrawal was always considered to be of public order so that, in principle, spouses could not deviate from this by mutual agreement. This Napoleonic approach departs from the ratio legis that the law should protect people from the will of love and from impetuousness ("victime de ses passions").
However, the Supreme Court now appears to be in a judgment of December 1, 2023 to accept that spouses who divorce under mutual consent in their contract a waiver can make, permanently excluding their right of revocation for the future. This since the public policy character would disappear at the time of termination of the marriage.
Why should spouses exclude the revocable nature of their gifts? Because in certain situations it is not desirable that gifts can be revoked unilaterally. To build in more certainty, spouses wish to exclude this threat. This would henceforth be possible outside of a prenuptial agreement. However, it remains to be seen whether this will be implemented in practice.
In short, the gift between spouses is a convenient and flexible tax technique to provide maximum protection for your partner. However, because of the various points of interest, it is important to seek the advice of a specialist in the matter.
If you have any further questions related to estate planning, you can always leave a message on our website. Our attorneys will guide you with the necessary expertise.
