A complaint lodged by a British woman against the 2021 French law that seeks to impose forced child heirship rules on foreign residents is being reviewed by the European Commission.
It could lead to a ruling that France has broken EU law, and thus infringement procedures and fines. A decision would take around a year.
Since 2015, an EU regulation, known as Brussels IV, has given residents of EU countries the right to opt in a will for the law of their nationality to apply to their estate when they die. English nationals or Americans, for example, can use it to set aside French réserve rules that leave set portions to children.
However, as of November 2021 a new French law states that notaires handling an estate where a national law without forced heirship rules is chosen must contact any ‘disadvantaged’ children and offer them a right to seek compensation.
The children can, if they wish, claim up to the amount set by French réserve rules from any French assets, ie. half of the estate for a single child, two-thirds shared among two, and three-quarters for three or more.
The law’s aim is said to be to protect daughters in Maghreb families.
French notaires have widely condemned it
French notaires have widely condemned it saying it does not respect the EU regulation.
Now a reader from Tarn has made an official complaint, the first known person to do so. “We all felt protected by Brussels IV. Now, it’s like someone has pulled the carpet away from under you. We could all be vulnerable,” she said.
She is her husband’s second wife and the couple had drawn up wills invoking English law to protect her and leave her more than allowed under the réserve.
She urges others to complain to highlight the issue to the commission, which previously told The Connexion it was aware of the law but had not yet taken a position.
The retired book editor wrote to the European Parliament but was told to follow the complaints process at this link.
She said: “There are a lot of us around who have stepchildren in our social circle and it’s a potential problem for everyone. “Those who may not have good French may think it is too complicated to complain but you can complete the form in either French or English – just click and fill it in.”
Issues are less likely to arise if all children are from a couple’s marriage and expect to inherit on the second parent’s death.
This may not be the case for stepchildren, who have no réserve rights and face high tax if inheriting from a step-parent, though President Macron has said he wishes to change this.
The reader said the law shows double standards: a minister recently told British second-home owners that France could not ‘unilaterally’ change the rule limiting them to 90-day stays as it was governed by an EU regulation, yet she said they had done so for inheritance.
Marc Cagniart, a Paris lawyer specialising in international matters, told The Connexion he agrees the 2021 law is contrary to the principles of Brussels IV. “It is bound to be challenged under rules of private international law [which state that EU law comes above national law], though for the moment there is this right for the children to ask for a compensation levy.”
It also fails in its apparent intention as inheriting under Sharia is unaffected: it has forced heirship rules, only they give daughters less than sons.
Mr Cagniart is not aware of any current legal cases on this. “It can take a long time, and the law is still recent,” he said. “But there have been a number of articles on the legal doctrine aspects, including some very virulent French ones, that said this goes against the EU regulation and should not apply.”
Legal experts are ‘almost unanimous’ in opposing it
Legal experts are “almost unanimous” in opposing it, he said. “If, on top of that, we have something that comes from Europe to say that France is in infringement of EU law, that would confirm that this right of compensation must be set aside. So the complaint is very good.”
If it is set aside there could be complications for inheritance procedures already under way at the time. However the setting aside could be worded with retrospective effect.
Notaire François Trémosa, of Trémosa-Leschelle et Associés, near Toulouse, said the 2021 law “is absurd and does not respect the rules of the EU regulation”.
However, he said that while he understood the reader’s action, he thinks the commission might consider the issue too complicated and be reluctant to intervene.
He said a change may have to wait for a case to go through the courts, probably up to the European Court of Justice or the Conseil Constitutionnel.
Mr Trémosa said the law creates complications for notaires. He is dealing with a situation where a disinherited British child wants to enforce the rule.
He is going further and taking a court case to claim his mother’s will, which left everything to her godchildren, is invalid and that he should inherit all.
While many notaires believe the law will eventually be struck out, it is worth taking advice from a notaire in the meantime as to possible other ways to achieve your intentions using older French law mechanisms.