France has confirmed that – as previously reported by The Connexion – English-law wills are exempt from the controversial 2021 forced-heirship rule.
It means that wills that opt for English inheritance law to cover a person’s estate are not subject to the French law which obliges notaires to contact any children who have been disinherited to ask if they wish to make a claim.
The exemption is due to the existence of English-law ‘family provisions’ that can in some cases protect a testator’s children, the French government told the European Commission in a letter. France has concluded that English law also contains mechanisms aimed at protecting children, notably through its family provision rules, even though these differ from France's hereditary reserve system.
This confirms the information told previously to The Connexion by sources.
The commission has published extracts of a letter of explanation that the French government sent to it, after the commission expressed concerns that the 2021 law, whose rules are now inscribed at article 913 line 3 of the Code civil, may be in breach of EU law.
The commission contacted France in response to multiple complaints it received – many from readers of The Connexion – against the 2021 French law.
The commission says it finds the French explanation satisfactory but will allow the complainants four weeks to respond with any information suggesting a re-assessment is needed. It may otherwise close the file afterwards.
EU regulation aimed to simplify inheritance share-outs
To recap, a 2012 EU regulation originally sought to simplify inheritance share-outs where there are international or cross-border dimensions (eg. an American person dies living in France and their children live in the US and Canada).
It said that as a default rule, the inheritance law of a testator’s (will writer’s) last place of residence will apply to their whole estate. However, a testator may alternatively state in a will that the law of their nationality should apply to their whole estate. Where someone has multiple nationalities, they may choose any of these inheritance laws.
A choice of foreign law does not affect inheritance tax but it does affect to whom someone may leave their estate.
Many Britons and other foreign nationals in France took advantage of this regulation to choose laws of English-speaking countries which are more flexible than French law.
The latter includes ‘hereditary reserve’ rules stating that a testator must leave set portions to their children (half of the estate to one child, two-thirds shared between two, three-quarters shared between three or more).
A foreign law was often chosen so a testator could leave the whole estate to the survivor of their couple, sometimes with the intention that the latter should then pass on the remainder after their own death. Many cases involved people with children from previous marriages.
French 2021 law caused complications
This system was found to work well, but a complication arose in 2021 when the French parliament passed a law, originally said to be aimed at preventing daughters being left less under Sharia law.
This said that where a foreign law is set to govern an inheritance share-out, if the testator or one of their children was a resident in the EU or was an EU citizen, and if the foreign law does not include mechanisms protective of children’s rights, the notaire should contact the person’s children and offer them the right to claim a ‘compensatory levy’ out of any French-situated part of the estate up to the value of their French 'reserved portion'. This would be an obligatory step if the children were not considered to have been sufficiently provided for.
It was left to notaires to determine which foreign laws were deemed protective or not, but it was widely feared that as English law, for example, has no specific equivalent of the French ‘hereditary reserve’ fixed heirs’ portions, it was affected.
Several other English-speaking inheritance laws are comparable to English law in this respect, however Scots law was thought likely to be exempted as it includes fixed heirs’ portions (though only from moveable property not real estate).
This caused confusion and stress, both for those who had written wills relying on the EU regulation, and also for the notaires profession, as had been predicted by the Senate during debate on the 2021 law, when senators said it risked having unintended consequences on those choosing Anglo-Saxon laws. Several couples said they were looking to sell up and leave France.
Connexion readers Trish Miller and Ronnie Bennett complained to the commission and launched a campaign to ask it to take action against what was widely seen by French lawyers as an infringement of the 2021 EU regulation.
Many complaints were lodged with the commission starting from late 2022, and a decision has been long awaited. In November 2024, the French government provided an explanation to us of why, in its view, the 2021 law was fair and balanced. It said the aim was to stop people discriminating against some of their children for reasons such as their sex, orientation, religion etc.
Recently, we were informally advised by our expert contacts that the French government may decide, to help resolve the controversy, to officially confirm exemption to English-law successions on the basis of ‘family provisions’. This refers to an English rule that where a testator’s children are left in financial difficulty after the testator dies, because they were relying on receiving inheritance and they were disinherited, they may ask a court to give them a part of the estate (with the decision left to the court).
This has now been confirmed to be true.
What does France say now?
The commission says it has now taken on board the latest explanations provided to it by France, and that France, in a bid to speed matters up, has agreed that the commission may publish extracts of these.
The notice about this is in French but the commission provides an English translation on its website here.
The explanation shows that France has now relied on article 35 of the EU inheritance regulation, which says that EU states may only disapply parts of the regulation if the effect of applying them will be “manifestly incompatible with the public policy” of the member state.
This means that certain rules may be set aside (notably, by a court, in the case of an inheritance dispute) if they clash with fundamental, deeply-held, values of the state, including in international matters. The notes to the regulation say it was intended that this should apply in exceptional circumstances.
When the EU regulation came into force in 2015 this proviso was known, and there was initial speculation as to whether French courts might seek to argue in cases of inheritance disputes, that the ‘hereditary reserve’ was French ‘public policy’. However, up to now France's top Cour de Cassation appeal court has not judged this to be the case as concerns matters of an international or cross-border nature, and the EU regulation has been allowed to have its normal expected effect.
The English translation of the commission’s letter states (formatting including bold and italic sections as in original):
“Even if the terms ‘international public policy’ are not used in the third paragraph of Article 913 of the Civil Code, the legislature’s [editor's note: ie. French parliament’s] objective is indeed that courts consider reserve mechanisms to be a rule of international public policy in order to allow the application of Article 35 of the Succession Regulation. (...)
However, the mechanism of the hereditary reserve [reserved share] as provided for in French law is intended to apply only if the foreign law normally applicable to the settlement of the succession ‘does not allow any reserve mechanism protective of children’.
“In order to limit the application of the third paragraph of Article 913 to that situation alone, the French legislature thus chose not to use the expression ‘hereditary reserve’ but to refer more broadly to the ‘reserve mechanism protective of children’.
Thus, the French legislature intended precisely to target mechanisms different from the French hereditary reserve such as the Family Provisions of Anglo-Saxon law, and to limit the right to compensation to cases where the foreign law does not allow any mechanism for the protection of children.”
“(...) [T]he Family Provisions provided for in Anglo-Saxon law are a ‘functional equivalent’ of the hereditary reserve. Thus, if English law is applicable to the settlement of the succession, the court should not apply the right to compensation as there is in English law a ‘reserve mechanism protective of children’, namely the Family Provisions.”
“In conclusion, the objective of the third paragraph of Article 913 of the Civil Code is to enable Article 35 of the Succession Regulation to be implemented. Moreover, the wording of that provision excludes the right to compensation in the presence of an alternative reserve mechanism protective of children (…), and does not have the effect of imposing the hereditary reserve mechanism provided for by French law.”
