A decision is expected by February 15 on the legality of France’s 2021 forced heirship law under EU rules.
The European Commission is expected to decide whether to start an infringement process against France over this after receiving several complaints.
It could request more time to decide if it deems the subject to be especially complex.
If EU suspects a breach it will start informal talks with France
Many lawyers believe the 2021 law, which seeks to enforce the reserved portions for children provided for in French inheritance law, clashes with an EU regulation that allows people to opt in a will for the inheritance law of their nationality.
The law says notaires should offer children compensation out of French assets if a legal system – such as England’s, or that of many US states – is chosen, allowing the estate to be left freely.
Avocat Simon Deceuninck, of Citizen Avocats, Bordeaux, said if the EU suspects a breach, there will most likely first be informal talks with the French to seek a solution.
He hopes King Charles’s visit and generally improved UK-France relations might help, especially as the MPs’ original target with the law was not Britons or Americans, but rather concerns over discrimination against women in the case of a choice of Sharia.
Ironically, some lawyers believe the 2021 law might not work in this case as Sharia says daughters should inherit a portion – but only half that of sons.
Next step would be court action and fines for France
The next step, if needed, would be a formal demand to France to rectify the issue. EU court action and fines for non-compliance could follow.
As France’s law was passed by parliament, it would take a new bill to remove it, said notaire François Trémosa, of Trémosa-Leschelle et Associés, near Toulouse.
It would “not be surprising” if such a law had some retrospective effect, but this would most likely apply only to inheritance proceedings still under way, not those that have been settled.
He said: “Notaires think the 2021 law is horrible and that it will not stand up against EU law.
“However, for the moment, the French government doesn’t seem interested in changing it.”
Mr Deceuninck agreed lawyers are unanimous in condemning the law, which he said was adopted during the pandemic, when parliamentary time was shortened and public scrutiny of the process was less than usual.
Issue could be low priority as EU citizens are not affected
The Commission has powers to act as a ‘gendarme’ over correct application of EU law, he said, but has discretion to decide whether to act or not.
He said there is a possible risk it could see this issue as a low priority as EU citizens are not affected – it is mostly ‘Anglo-Saxon’ legal systems that lack forced heirship rules.
However, if it finds a violation, it generally has no qualms about saying so, he said.
He agreed that legal precedent shows it is very unlikely a new law would have retrospective effect on settled inheritances.
However, he thinks it might be more likely that the 2021 law will ultimately be ended by a legal case in France by beneficiaries of a will defending themselves against the compensation levy.