The law assumes that during their lifetime parents want to treat their children equally. This does not mean that parents are bound by law to do so, but the law assumes that if a parent gave something to a child that parent wanted to give the same to the other children.
What is collation?
Collation is a legal mechanism that may correct favouritism that occurred unintentionally by the parent between siblings who are coheirs. Through collation, the child who received more than the other siblings will have that received from the parent added when calculating the share of the inheritance.
Collation is calculated as follows: that donated made by the deceased is added to the share of the descendant who received the donation. For example: If a mother gave her son Peter property worth €200,000 and her other son Albert property worth €50,000, Albert may require that the value of these properties are included in the share that is due to them upon her death. Thereby, through collation, Albert may receive an additional €150,000.
Collation only applies to siblings who are also coheirs. Hence, if an ascendant donated property to a child, but did not appoint that child or the sibling as a heir, neither may not compel the other sibling to collate.
Donations subject to collation include:
- All donations made unless the ascendant declares that these are not subject to collation;
- All that is disbursed by the deceased for providing a dowry or donation on the occasion of marriage (to be distinguished for “expenses made” on the occasion of marriage);
- All expenses disbursed in setting up the donor in employment or business;
- All expenses disbursed for paying descendant’s debts or benefit under a foundation or trust.
Donations not subject to collation include:
- Donations given to a descendant that are explicitly exempt from the obligation of collation by the ascendant. The exemption must be either made in the instrument by which the donation is made or otherwise made by another instrument that has the formalities of donations or wills (Civil Code, Article 914);
- Expenses relating to maintenance, education, customary presents and those expenses made on the occasion of marriage (Civil Code, Article 924);
- Donations made to the spouse of a descendant who is entitled to succeed is not subject to collation. Where the donation is made to both spouses and one of them is entitled to succeed, the spouse entitled to succeed is bound to collate his or her share of the donation (Civil Code, Article 920);
- Donations to the grandchildren are generally not subject to collation (Article 918);
- All things left by will, unless there is a disposition to the contrary, are not subject to collation (Civil Code, Article 923);
- Any profits derived from agreements entered into with the deceased are not subject to collation, provided such agreements did not, at the time they were into, confer any indirect advantage (Civil Code, Article 925);
- Goods that are consumed by use, articles of clothes or articles for domestic use are not subject to collation (Civil Code, Article 931).
A parent is always free to donate anything to one of the children without an obligation to collate. The parent is at liberty to do so as long as that parent does not prejudice the reserved portion due to the children or the surviving spouse.
Determining whether a sibling should collate any donation received from either parent is often a complicated process and it is always recommended to discuss the matter with an expert in order to determine whether collation is due or not.