Drafting a cohabitation agreement is an important step for cohabiting partners to properly arrange their legal and financial matters. It provides clarity and security, protects the rights of both partners, and helps prevent conflicts. Cohabitation itself does not have civil law consequences. Each partner retains their own assets and is not liable for the other’s debts. If the cohabitation ends through separation, a partner with little or no income is not entitled to alimony, even if there are children cared for by this partner (although the children themselves are entitled to support). However, if two people have lived together as though married for a significant period, and the cohabitation ends for reasons other than death, a court may grant maintenance payments to one partner, upon request, if deemed reasonable.  

Key Reasons for a Cohabitation Agreement (and Ideally a Will or Survivorship Clause)  
Below are the main reasons why a cohabitation agreement and a will or survivorship clause are essential:  

 Legal Certainty and Protection  
A cohabitation agreement provides legal certainty for both partners. It regulates important matters such as property rights, financial arrangements, and caregiving responsibilities, thereby preventing misunderstandings and conflicts in the future.  

 Financial Arrangements  
Partners can establish agreements in a cohabitation agreement regarding the division of costs and income, including:  
– Division of household expenses  
– Contributions to shared living costs  
– Ownership and management of shared and personal assets  

 Division of Assets Upon Separation  
If the relationship ends, the cohabitation agreement determines how shared assets and debts are divided. This can prevent a lengthy and costly legal process and ensures a fair distribution.  

 Spousal Support  
Although not legally required, partners can agree on spousal support in a cohabitation agreement. This provides financial security if the relationship ends and one partner is financially dependent on the other.  

 Heirs and Inheritance Law  
A cohabitation contract does not automatically make partners heirs to one another (a will is required for that). However, partners can agree in a survivorship clause that shared property will pass to the surviving partner upon one partner’s death.  

– A will applies to all assets, including private property; is unilaterally revocable (providing freedom but less security for the other partner); simplifies estate settlement; can include exclusion clauses; and does not trigger transfer tax.  
– A survivorship clause applies only to jointly owned property, not private assets; cannot be unilaterally revoked due to its contractual nature; complicates estate settlement; cannot include specific clauses, such as exclusions; and may trigger transfer tax.  

If the house is jointly owned by the informal partners, a survivorship clause in the cohabitation contract can ensure that the other partner can remain in the house. This clause is a distribution agreement in which one or more shared assets are allocated in advance or through deferred delivery to the surviving co-owner in the event of death or insolvency. Typically, this occurs without requiring compensation but obliges the surviving co-owner to take responsibility for any debts tied to the shared assets.  

 Testamentary Options for Cohabiting Partners with Children  
A will for cohabiting partners with children can be structured in various ways:  
1. The surviving partner inherits everything.  
2. A two-step inheritance arrangement.  
3. A pseudo-parental estate division.  
4. A usufruct will.  

The pseudo-parental estate division is often the most suitable option for cohabitants.  

 Shared Home  
The cohabitation agreement can include provisions regarding the shared home, such as:  
– Ownership and usage rights of the property.  
– Division of the property in case of separation.  
– Agreements on the mortgage and potential sale of the property.  

 Mutual Care  
Partners can make arrangements for mutual care and support in case of illness or disability. This provides emotional and practical security during challenging times.  

 Children  
Although custody and guardianship of children are regulated by law, partners can make additional agreements in a cohabitation agreement about upbringing, financial support, and care for any children.  

 Flexibility and Adaptation  
A cohabitation agreement can be tailored to the specific wishes and circumstances of the couple. The document is flexible and can be revised over time to accommodate changing needs and situations.  

Enrico van der Meij  
enrico@estateplanningcur.com  
Enrico van der Meij is a specialist in estate planning and can answer questions, provide advice, and draft documents in the areas of personal, family, inheritance law, and inheritance taxation.