A law in force since November 2021 aims partly to annul the effects of a choice of a foreign inheritance law by residents in France – but there are possible solutions to deal with this.
The 2021 law is proving especially inconvenient to some English or American residents in France, among others. This is because it seeks to enforce French 'forced heirship' rules in favour of children, even where the French resident had made use of an EU regulation to say the law of their nationality should govern their worldwide estate.
Where a national law is chosen that has no forced heirship rules in favour of children, and the children are disadvantaged by the will, the 2021 law says the notaire dealing with the estate should advise them of their right to ask for a compensatory levy against French assets in the estate.
Many notaires believe this will eventually be overturned by a court, as it appears to contradict the intention of the EU regulation, but this is likely to take many years.
In the meantime, several French legal mechanisms already exist to help protect against the effects of the 2021 law.
These need to be discussed with a notaire – those who speak English can be found here – but we summarise here:
- A change of marriage regime to ‘universal community’, so a couple’s assets become the property of the other on the death of one member. This can, however, still pose issues in the case of stepchildren as they have a right to object;
- A tontine clause, whereby a couple buy a property stating that the survivor becomes sole owner after the first death. This clause has to be inserted at the time of buying the property. There may be limited rights for disinherited children to argue that the clause should be disregarded but it is generally accepted this would not be simple;
- A well-worded will or donation au dernier vivant. It is possible for a person to leave their estate to their spouse in usufruit (for lifetime use) or three-quarters in usufruit and one quarter in outright ownership. Usufruit includes the right to live in a home, or rent it out, or to benefit from income from investments, although the beneficiary may not sell anything without the permission of those entitled to the remainder after they die.
Note that French law gives a surviving spouse the right to stay in the family home for life if the spouse notifies the notaire handling the estate of this wish.
This has a monetary value: if it is less than they are due under the will, they may inherit all. If it is worth more, there is no requirement to compensate other heirs.