Obiteljsko poslovno pravo: vlasništvo, nasljeđivanje i sporovi

Family business law is not a separate branch of Dutch law: it is where company law, matrimonial property law, succession law and contract law meet in one enterprise. A single private event, such as a divorce or a death, can move ownership of the company, unless the articles of association, a shareholders’ agreement, prenuptial agreements and wills have been drafted to work together.

This article explains how those layers interact for a Dutch family business, which instruments keep control in the family, and how disputes are resolved. The tax side of a business transfer, including the business succession scheme, belongs with a tax adviser and is left out here.

What makes a family business legally different?

Dutch law has no definition or special status for a family business. A family company is an ordinary private limited company (besloten vennootschap, BV), partnership or sole proprietorship, subject to the same rules as any other.

The difference is that the same person can be shareholder, director, employee, spouse, parent and heir, and each role has its own rules. A director-shareholder can be dismissed as director by the general meeting while keeping all their shares; a disinherited child still has a claim under Book 4 of the Dutch Civil Code (BW); and a spouse who never worked in the business may still have a financial claim on it. Arrangements that everyone remembers differently become evidence problems once relationships deteriorate, so put them in writing.

Which structure suits a family business?

Most family enterprises start with a BV, which separates business assets from private assets and allows ownership to be divided and transferred in shares. A sole proprietorship or general partnership (vof) exposes private assets to business debts and cannot be transferred in parts, which makes it unsuitable once a second generation joins.

Struktura držanja

Each family member or branch holds its shares through a personal holding company, which holds shares in the operating company. This keeps operating risk away from accumulated reserves, lets each branch decide on dividends and reinvestment, and makes a later transfer of one interest simpler.

Trust office foundation (STAK)

A trust office foundation (stichting administratiekantoor, STAK) holds the shares and issues depositary receipts (certificaten) to family members. The foundation votes; the receipt holders receive dividends and share in the value. This lets a founder pass value to children who are not active in the business while control stays with the foundation board, which can include an outsider.

The conditions of administration (administratievoorwaarden) set out how the foundation votes, when receipts may be transferred and what happens on death or divorce. Receipt holders keep information rights, so certification works best when the split between control and value is deliberate and explained.

What belongs in the articles and what in the shareholders’ agreement?

The articles of association bind every shareholder, including someone who acquires shares through inheritance or a divorce; a shareholders’ agreement binds only its parties. Anything that must survive a death, a divorce or a sale therefore belongs in the articles.

Under Article 2:195 BW, a BV shareholder must first offer shares to the other shareholders unless the articles provide otherwise, so check that the family’s articles keep such a transfer restriction with a clear valuation basis. Under Article 2:192 BW, the articles can attach requirements and obligations to shareholdership, for example that a holder who is no longer a family member or no longer active must offer their shares. Separate classes of shares can divide voting rights, profit rights and the right to nominate a director between branches.

The shareholders’ agreement covers what the articles cannot sensibly carry: who values the shares, good and bad leaver terms, dividend policy, non-compete obligations and admission of the next generation. Build in two mechanisms from the start: a deadlock clause that breaks a 50/50 split between siblings, for example through an independent chair or a buy-sell procedure, and a valuation method agreed in advance. See our article on sporovi dioničara u Nizozemskoj.

What happens to the shares on marriage or divorce?

For marriages concluded since 1 January 2018, the default regime is a limited community of property (beperkte gemeenschap van goederen) under Article 1:94 BW. Assets owned before the marriage, and gifts and inheritances received during it, stay private; what is built up during the marriage is shared. For older marriages the full community applies, in which a business owned before the marriage fell into the community. See our article on the ograničena zajednica imovine.

Even if the company stays outside the community, Article 1:95a BW gives the community a reasonable compensation for the knowledge, skills and work a spouse devoted to the business, to the extent this was not already compensated in another way. A director-shareholder who paid themselves a modest salary and left profits in the company is therefore exposed on divorce; a market-rate salary and regular dividends are a legal precaution too.

Prenuptial or postnuptial agreements (huwelijkse voorwaarden), made by notarial deed, can keep the shares and their growth outside any settlement. Draft them with the company in mind: a periodic settlement clause that is never applied can lead to a full settlement at the end of the marriage. The articles or conditions of administration can also require shares or receipts that pass to a spouse to be offered back. See our articles on predbračni ugovori u Nizozemskoj i na divorce where a business is involved.

What can a will do for a family business?

Without a will, the statutory division of Article 4:13 BW applies: the surviving spouse or registered partner receives all assets, including the shares, and the children receive a money claim against the spouse that is only payable on the spouse’s death or bankruptcy. For a family company that is often the worst outcome, because the entire shareholding goes to the person least prepared for it.

A will can leave the shares as a legacy to the child who works in the business, at a value set by a mechanism in the will, while the other children receive money or other assets. It can appoint an executor to hold the estate together and create a testamentary administration, so that a named administrator manages the shares until an agreed moment.

Can you disinherit a child?

Not completely. Under Article 4:64 BW, a child’s statutory share (legitieme portie) is half of what they would have received without a will. It is a money claim only, so a disinherited child cannot demand shares or a seat on the board, but it can drain the company of cash.

Under Article 4:82 BW, the testator can provide that the claim is only payable after the death of the surviving spouse, which gives the company time. Gifts made during life count in the calculation, so an earlier transfer of shares does not remove the exposure. Under Article 4:85 BW, the child must claim the statutory share within a reasonable period set by an interested party, and at the latest five years after the death. See our overview of nasljedno pravo u Nizozemskoj.

Draft the will, articles, shareholders’ agreement and conditions of administration as one set. A will that leaves shares to a child whom the articles do not allow to hold them produces years of argument at the worst moment.

How do you organise governance in a family company?

Hold general meetings properly, minute resolutions and keep the shareholders’ register up to date. Decisions taken over a family lunch and implemented by the director are the most common source of later disputes about whether a resolution was ever passed.

Under Article 2:239(6) BW, a BV director with a direct or indirect personal interest that conflicts with the company’s interest may not take part in the deliberation and decision; if no board resolution can then be adopted, the supervisory board decides. Ignoring this rule makes the resolution vulnerable and exposes the director personally.

Many families add a supervisory board (raad van commissarissen) or an advisory board with at least one outside member, who can say what family members cannot say to each other. A family charter (familiestatuut) records who may work in the business, how the next generation is prepared and how disagreements are handled. It is a statement of intent; the parts meant to bind must be transposed into the articles and the shareholders’ agreement.

What legal routes exist when the family falls out?

Dutch company law offers three routes, and the choice determines both cost and outcome. Since 1 January 2025, the statutory dispute settlement scheme is also heard by the Enterprise Chamber (Ondernemingskamer) of the Amsterdam Court of Appeal, which already handled inquiry proceedings.

• Dispute settlement scheme (geschillenregeling): under Articles 2:336 to 2:343c BW, a shareholder whose conduct harms the company can be ordered to transfer their shares, and under Article 2:343 BW a shareholder whose rights or interests are harmed by co-shareholders can demand that they buy their shares. The Enterprise Chamber sets the price (Article 2:340 BW), and the shares must then be transferred within two weeks after service of the decision.
• Inquiry proceedings (enquêteprocedure): under Article 2:345 BW, the Enterprise Chamber can order an investigation into mismanagement. Under Article 2:349a BW, it can impose immediate measures, such as suspending a director, appointing an independent director or transferring shares to a custodian. In a deadlocked family company, that provisional relief is often the main point.
• Ordinary civil court: for claims under a shareholders’ agreement, a promise to transfer shares, a valuation or directors’ liability. Mediation is most useful here, and a settlement implemented in the articles lasts longer than a judgment.

See our articles on the Poduzetnička komora and on the rights of manjinski dioničari.

What should you check as a founder or majority shareholder?

• Check that the articles contain a transfer restriction with a clear valuation method (Article 2:195 BW).
• Check that your will matches the articles and the shareholders’ agreement.
• Consider a STAK to separate control from value before transferring shares to children.
• Pay yourself a market-rate salary to limit the claim under Article 1:95a BW on divorce.
• Make sure prenuptial agreements of shareholders keep the shares outside any community.
• Add a deadlock clause and an outside member to the board or advisory board.

What should you check as a family member or minority shareholder?

• Check your information rights as shareholder or depositary receipt holder.
• Check the leaver terms and valuation method in the shareholders’ agreement before you sign.
• As a child, note that a statutory share must be claimed within five years after the death (Article 4:85 BW).
• Check whether resolutions were properly adopted and minuted.
• Consider the exit route of Article 2:343 BW if continued shareholdership can no longer reasonably be expected of you.

What can we do for you with your family business?

Naši korporativni pravnici i poslovni odvjetnici advise family businesses and the families behind them.

• We review the articles, shareholders’ agreement, wills and prenuptial agreements as one set.
• We draft transfer restrictions, share classes, leaver terms and deadlock clauses.
• We set up a STAK and draft the conditions of administration.
• We work with the notary and tax adviser on a succession.
• We act in disputes, including before the Enterprise Chamber.

Rezime

• Family business law combines company, matrimonial property, succession and contract law.
• Anything that must survive a death or divorce belongs in the articles of association.
• Article 1:95a BW can give a spouse a claim even if the company is outside the community of property.
• A child’s statutory share is half the intestate share and a money claim only (Article 4:64 BW).
• Since 1 January 2025, the Enterprise Chamber also hears the dispute settlement scheme, alongside inquiry proceedings.

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