Reader question: In January you said that as long as a Brussels IV elected foreign inheritance law does not actively disinherit a child, it should be possible for UK law to apply (despite new French forced heirship rules).
However, my notaire said if my husband predeceases me, his two children will now immediately be entitled to a sizeable chunk of what would then be my assets. This is despite a Brussels IV will and ‘community’ marriage regime. Is he right?
Unfortunately, yes. The new law can present problems where the intention of a will electing the law of the testator’s nationality is to leave all to the spouse in the presence of children or stepchildren, as they are potentially disinherited, and where there are no provisions under the elected law for them.
Unfortunately, a community regime is not a magic solution either where there are stepchildren. The notaire will have advised that disinherited stepchildren can object to communauté provisions.
The new law does not apply if the deceased and the children live outside of the EU and have no EU nationality. However, if the deceased lived in the EU, the new law can apply to French assets.
The January article did not say you can disinherit stepchildren without problems; it referred to leaving all to the spouse, then to children – without disinheriting them.
If stepchildren are likely to be disinherited, the notaire will be required to inform them of their inheritance rights in relation to French assets. The children do not have to exercise that right, though.
Where families want to make sure children or stepchildren do not inherit, there are steps that can be taken, though it might involve restructuring the ownership or location of assets, which can be expensive.
Specialist advice should be obtained.