Date updated: Thursday 31st August 2023
French forced heirship
In England and Wales testamentary freedom exists, meaning that broadly speaking you can leave your assets to whomever you wish when you die.
In France the general position, for both French nationals and foreigners, for many years was that it was not possible to leave your assets freely in your will when you died.
This affected British nationals who owned property in France as they did not have the freedom to leave their French property in their will to whomever they wished.
In France if you have children, broadly speaking, on your death you must leave a proportion of your assets to your children – you cannot leave all your assets to your spouse and you can not disinherit a child even if you have been estranged for many years.
This means that if a married couple own their property jointly, following the death of the first spouse, it is possible for the surviving spouse to end up owning the French property with a number of children, including step-children, which is often not what the couple intended.
The European Succession Regulation
In 2015 the European Succession Regulation (650/2012) came into force. This law allows people to ‘elect’ for the law of their nationality to apply to their will in France.
This means that a British couple, most closely associated with England, can choose British (English) law to apply to their French will.
The effect of this is that they can leave their French home to one another, and then to their children on the second death, if they wish. Or they can simply by-pass their children completely and leave their property to another family member or a charity.
The new French law – Article 913 of the Civil Code
On 1st November 2021 a change was made to Article 913 of the Civil Code.
The change added the following wording:
“When the deceased, or at least one his children, is, at the time of death, a national of a Member state of the European Union or has his/her habitual residence there, and when the foreign succession law does not know a mechanism with a reserved portion protecting the children, each child (or his/her heirs, or those who benefit from his/her rights) can use the assets which are located in France to obtain a compensation at the time of death, in order to benefit from the forced heirship rights which they have under French law, within the limits of these rights.”
This new law came into force on 1 November 2021 and applies to deaths after this date.
Notaires are finding this law difficult to deal with – how to identify all the children, how to find estranged children, how to deal with their replies (or lack thereof) etc.
Notaires have been told that it is likely that the law will be challenged at some point.
It is likely that this law will be challenged on a European level – as it appears to directly contradict the terms of the EU Succession Regulation. However, any challenge and its outcome could take several years to be concluded.
In the interim, the change to Article 913 is causing succession planning difficulties for many individuals and families and is also meaning that many people are not able to leave their assets on their death as they wish.
British nationals living in the UK
Amy and Andrew are a married British couple. They live in London and have a holiday home in Normandy.
They each have 2 children from previous marriages. In their wills, which have a British law election, they leave all their worldwide assets to each other on the first death, and equally to the four children on the second death.
All their children are British and live in the UK.
Because both Amy and Andrew, and all their children live in the UK and are British, the changes to Article 913 do not apply to them. Their wills are still valid and they do not need to take further action at this time.
British nationals living in France
Bea and Barry are a British married couple. They live in the Dordogne.
They have two sons. The elder son is very wealthy, having recently sold his successful business. The younger son has suffered from poor health for many years and is in a financially precarious situation.
Bea and Barry have made wills, with a British law election, in which they leave their home to each other on the first death, and then to their younger son.
Because Bea and Barry live in France their estate planning will be affected by the changes to Article 913 of the Civil Code.
Both their children can make a claim on the first death of Bea and Barry as neither receive anything at this time, and the older son can also make a claim on the second death as only the younger son is included in the will.
A child living in the EU
Claire is a British national living in Bath. She owns a chalet in the French Alps.
She has one child of her own and three stepchildren. Claire loves all the children and does her best to treat them the same.
All the children are British and live in the UK, except for Claire’s legal child who is living in Portugal.
Claire has made a will to cover her French assets in which she leaves her French home to the four children equally.
Because Claire’s legal child is habitually resident in the EU, she will be able to make a claim under Article 913 because she is not receiving the share of Claire’s estate as set out under the French forced heirship rules.
For more information or to discuss how this law may affect you please contact: international@stoneking.co.uk.
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