What a recent ruling of the Amsterdam District Court means for internationally active entrepreneurs, managing-director shareholders (DGAs) and their families
Introduction
For entrepreneurs and managing-director major shareholders (DGAs) who do business internationally, wealth rarely stays neatly within a single name or a single account. Investments, real estate, rental income and savings are often spread across both partners, sometimes across several countries, and not always recorded in writing. As long as everything runs smoothly, this causes no difficulty. But the moment one of the two partners becomes involved in a criminal investigation, an unexpected question arises for many families: can the State also seize assets held in the name of the other partner?
The answer is: under certain conditions, yes. A recent ruling of the Amsterdam District Court (16 December 2025, ECLI:NL:RBAMS:2025:10834) shows, however, that those conditions are real, and that a well-documented, commercially defensible division of family assets can withstand scrutiny. For that reason the case is of practical importance to every entrepreneurial family whose finances are intertwined.
What the case was about
At first instance the husband had been convicted of, among other things, directing a criminal organisation, money laundering and forgery. An appeal against that judgment was pending. In the same criminal case the Public Prosecution Service had announced a confiscation claim: a claim seeking to recover the unlawfully obtained gains, here calculated at over EUR 3.3 million.
To secure that future claim, the Public Prosecution Service imposed precautionary (conservatory) attachments on various assets. One of them was striking: a bank account held solely in the name of the wife. After the sale of the couple’s home, part of the surplus value – EUR 61,700 – had been transferred to her account, while a smaller part went to the husband’s account. The Public Prosecution Service treated the couple as an “economic unit” and argued that this amount in fact belonged to the convicted husband and had been deliberately placed beyond the reach of justice.
The wife filed a complaint and requested that the attachment be lifted.
The legal framework: ordinary seizure versus “third-party seizure”
Under Article 94a of the Dutch Code of Criminal Procedure, the Public Prosecution Service may impose a precautionary attachment to secure recovery for a later fine or confiscation order. Where there is a suspicion of, or a conviction for, a serious offence, this is in principle permitted, provided it is not highly improbable that the criminal court will ultimately impose a payment obligation. Those general conditions were met here; that was not in dispute.
The heart of the case lay elsewhere. The attachment was not imposed on assets of the suspect himself, but on assets of another person: his wife, against whom no criminal investigation was pending. This so-called third-party seizure (Article 94a(4) of the Code of Criminal Procedure) is subject to stricter requirements. The State may reach a third party’s assets only where two cumulative conditions are met:
First, the requirement of frustration of recovery: there must be sufficient indications that the assets came to belong to that other person with the apparent aim of hindering or preventing recovery by the State. Second, the requirement of knowledge: that other person must have known, or could reasonably have suspected, that this was the aim.
In other words: it is not enough that assets are held in the partner’s name. The Public Prosecution Service must make it plausible that the arrangement was set up to obstruct the State, and that the partner was aware of this.
Why the attachment was lifted
The court first found that the wife was beyond reasonable doubt to be regarded as the owner of the amount. The account was held solely in her name and she received her own income on it. The assessment therefore shifted to the two conditions set out above.
On that point the Public Prosecution Service’s case fell short. The wife and her husband had given an explanation for the division that the court considered “not implausible at first sight”. That explanation rested on concrete, verifiable elements: the wife had demonstrably invested her own funds (at least just over EUR 42,000) in the home; she did not pay the mortgage interest, but did pay part of the other fixed household costs; and the couple had agreed that she would forgo her share of the rental income from other real estate, precisely because her husband bore the mortgage interest. Against that background, a larger share of the surplus value for her was defensible.
The Public Prosecution Service had put little of substance against this. Its assertion that the money flows between the partners were “unclear” was considered insufficient by the court. A suspicion of murkiness is not proof of a deliberate construction. Because frustration of recovery had not been made plausible, the court did not even reach the knowledge requirement. The complaint was upheld and the attachment of EUR 61,700 was lifted.
Why this matters for internationally active families
For entrepreneurs and DGAs with an international background, this ruling is instructive in several respects.
First, it shows that Dutch criminal procedure reaches further than the suspect alone. The concept of an “economic unit” – the idea that partners function financially as a single whole – is readily used by the Public Prosecution Service to bring a partner’s assets within reach. Anyone who assumes that an account or asset is “safe” because it is formally held in the name of the spouse is mistaken. The name on the account is a starting point, not an end point.
At the same time, the ruling shows where the limit lies. The State must deliver more than a suspicion. A division of assets that rests on genuine own contributions, on a logical allocation of roles within the household and on agreements made in advance is not frustration of recovery – even if it results in the larger part ending up with the non-suspected partner. The difference between “legitimate division of assets” and “siphoning off” lies in how demonstrable and commercially logical it is.
That difference is, in practice, evidence-driven. And this is precisely where many internationally active families are vulnerable. Wealth built up across borders, agreements made orally, contributions that are undocumented: exactly the elements that worked in the wife’s favour in this case are often missing. Had the wife’s own contribution not been substantiated, and had the partners been unable to explain the allocation of roles, the outcome could have been very different.
What this means in practice
The most important lesson is preventive in nature. The protection of family wealth against criminal recovery is not won at the hearing, but built up in the years before it.
That begins with separating assets in reality, not only on paper: separate accounts that genuinely reflect one’s own income and one’s own expenditure carry more weight than a formal name on the account alone. It is worthwhile to record one’s own contribution in writing – for example when buying a home or financing a business – and to be able to support it with documents. A prenuptial agreement, a cohabitation contract and clear agreements on the division of costs and income provide a verifiable account afterwards, rather than a reconstruction. And where money flows between partners inevitably become intertwined, it helps to keep them transparent and traceable; “murkiness” was admittedly held insufficient as evidence here, but it is not a position one wishes to be in voluntarily.
For those already confronted with a seizure, the ruling offers a clear route. The complaint procedure under Article 552a of the Code of Criminal Procedure allows the non-suspected partner to challenge the attachment and request that it be lifted. That procedure is summary in nature – the court does not decide the underlying criminal case – but it does compel the Public Prosecution Service to make its assertions about frustration of recovery and knowledge concrete. A well-substantiated defence, with documents explaining the origin and division of the assets, can make the difference there.
Conclusion
The Amsterdam District Court confirms a balance that is of great importance to entrepreneurial families. On the one hand, in serious criminal cases the State can reach beyond the suspect alone and also touch a partner’s assets. On the other hand, this is no carte blanche: without concrete indications of a deliberate construction to frustrate recovery, and without knowledge of this on the partner’s part, a third-party seizure does not stand.
For internationally active entrepreneurs and DGAs the message is twofold. Do not count on the name on an account automatically protecting your family’s wealth. But know also that an honest, documented and commercially defensible division of assets places you in a strong position – precisely at the moment when it matters. The time to lay that foundation is not when the seizure has already been imposed, but well before.
This contribution is of a general and informative nature and does not constitute legal advice. For an assessment of your specific situation – whether it concerns the structuring of family and business assets or challenging an attachment that has been imposed – please contact Hodak Legal.
