Héritiers réservataires

According to the standard French inheritance rules children, natural or adopted – but not stepchildren – whether born inside marriage or not, have set minimum inheritance rights.

They are known as héritiers réservataires (reserved heirs).

Note that this does not apply if you opt to make use of the law of your nationality via the EU regulation – see here, though bearing in mind the issues raised by the 2021 French law (see here).

The portions are as follows:

• An only child receives half the estate 

• Two children share two thirds

• Three or more children share three-quarters of the estate.

If a child dies before their parent but leaves children or grandchildren, the latter share what their parent/grandparent would have had.

If the deceased left a greater share of their estate (by will or lifetime gifts) to someone other than their children, then the children may apply for a reduction of the excessive bequests or gifts, applying to all or specific recipients of these.

Parents and grandparents are not héritiers réservataires, although if their child dies without children they may, if they wish, reclaim any gifts they had made to that child.

This right is limited, per parent, to a maximum of a quarter of the value of the whole estate.

An héritier réservataire may, at any time, relinquish all or part of his or her rights by a deed made before two notaires.

Rights of a surviving spouse

If there are no surviving children or grandchildren but there is a surviving spouse, the spouse is a réservataire and must receive at least a quarter of the estate.

If there are surviving children or grandchildren (from outside the marriage or not) the testator may, by will, leave to a surviving spouse, either the quotité disponible (the remainder of the estate after reserved heirs' portions) a usufruit over the whole estate, or a usufruit over three-quarters of the estate and the rest in full ownership.

A will may leave to the surviving spouse the choice of which of these three options he or she wishes to take, to be decided after the death. A usufruit is the nearest equivalent to the English life interest.

It gives its owner (usufruitier) the right to 'enjoy the fruits' of the asset, i.e, if it is a property, to live in it or to rent it out, or if it is cash or investments to have the income.

However, there is an important difference between this and the English life interest. A usufruitier has no right to sell the asset without the consent of those entitled to the remainder on his/her death (the nu-propriétaires).

If all parties agree to a sale then the usufruitier receives only a proportion of the proceeds equal to the actuarial value of his or her rights to the property, depending on his or her age at the time (see here). In this case the rest of the sale proceeds go to the nu-propriétaires and the usufruit right is extinguished.

Right to stay in the home

Where a spouse or civil partner is living in the family home, he or she has the right to stay for a year free of charge (if it was rented, the estate pays). This does not apply to people who have no legally-recognised partnership and, in the case of civil partners, it can be cancelled in a will.

In the case of married couples only, a right of occupation – and to use the furnishings – continues for the survivor's whole lifetime unless the deceased cancelled this right by will. However the survivor must state his or her wish to benefit from this, within a year of the death.

This lifetime residency right has a value which can be calculated using a formula related to the age of the survivor. If it is less than the amount the person was due under the will, they may take the rest from the estate. If it is worth more, there is no requirement to make this up to the other heirs. Under both the annual and lifetime arrangements, the spouse may also, if he or she wishes, rent out the house to others, for example to move into a retirement home.

Where the home was rented (as opposed to owned) jointly by two spouses/civil partners the lease passes to the survivor, who also continues to have a lifetime use of the furnishings if the home is their main residence (if the lease was only in the deceased's name it may be transferred to the survivor if they wish).

The right to take over the lease also applies to informal partners if the two people had been well known as a couple and lived together for more than a year.

Part-ownership is no protection for an informal partner, as the deceased's heirs could seek for the home to be sold.

Right to the deceased's car

The heirs or spouse may continue using the car while the inheritance is dealt with. If one or more heirs wants to keep it they need to obtain a carte grise in their name/s (if just one, a letter from the others renouncing a claim, or a notaire's certificate, is needed).

The insurance is transferred to the heirs who can keep it in their name or cancel it.

They also need to obtain a new carte grise to sell the car unless it has not been used since the death or the sale is within three months of death.