Reader question: Are there implications if I gain French (dual) nationality and am resident in France when I die? Will my estate be able to be dealt with under British inheritance law rules? Or will the French insist it is governed by French law?
The legislation which allows a British resident in France to choose the law of their nationality to apply to their whole estate when they die is an EU inheritance regulation, often known as Brussels IV.
One purpose of this regulation was to simplify the administration of a deceased person’s estate by providing that the inheritance law of the state of the individual’s “last habitual residence” will govern their worldwide estate.
However in member states which adopted the regulation it also gives individuals the option of declaring by will that he or she wishes the law of the country of which he or she is a national to apply instead.
Individuals with dual or multiple nationality are free to choose which state’s law they want to govern their worldwide estate, including also the law of a non-EU member state.
This is stated in article 22 of the regulation: “A person possessing multiple nationalities may choose the law of any of the states whose nationality he / she possesses at the time of making the choice or at the time of death”.
In the case of an English/French person, for example, this provides the option to choose English law, which allows for more freedom as to how you leave your estate, potentially bypassing the restrictive French rules on children’s inheritance portions.
Having said this, do bear in mind that a 2021 French law has made it more complicated to avoid issues arising from this ‘set portion’ rules.
While this is what the EU regulation says, some experts did wonder whether gaining French nationality might possibly pose problems when the legal change came in (though The Connexion understands that this has not so far proved to be the case).
This was due to the fact that for most purposes France considers a dual national to be French and disregards other nationalities.
However, Gerard Barron, an honorary avocat from Boulogne-sur-Mer, who is a dual French-British national, previously told The Connexion that France appeared to be taking a ‘strict interpretation’ of the regulation (ie. interpreting it to the letter of the wording) and so it appears likely that in general there will be no problem.
Having said that, he added that if a disinherited child tries to challenge the choice of UK law in the French courts (particularly with regard to any French property), they might still try to take advantage of the fact of a person being French, and at this stage, with no court decisions on the issue, it is hard to state the outcome with complete certainty.
The wording of the regulation also contains a so-called ‘public policy’ exception, which allows for a rule contained in a chosen foreign legal system to be disregarded where its application would be ‘manifestly incompatible with the public policy of the member state concerned’, in this case, France.
However Mr Barron thought this was unlikely to be applied to most situations relating to dual nationality.
He said: “I believe that in this case the exception would probably only apply, subject to the courts’ opinion on a case-by-case basis, to someone whose country of origin is France and who, after publication of the regulation, obtained foreign (ie. British) nationality with the primary aim of sidestepping French inheritance rules.”