France 2021 inheritance law: Why wills choosing Scots law may be exempt from forced heirship
The same may also apply to wills electing law from one US state
The notaire handling an estate is expected to check which rules apply, if necessary by consulting a lawyer with expertise in the country’s law
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Wills that choose Scots law should be protected from France’s controversial 2021 forced heirship rules. The same may also apply to wills using Louisiana law.
This is because both Scots and Louisiana law already reserve part of an estate for children (known as ‘hereditary reserve’).
Most continental European laws would also give exemption, as they are typically ‘civil law’ systems with rules comparable to France’s set heirs’ portions. The opposite is usually thought to apply to major English-speaking countries’ laws.
Jérôme Poltorak, an English-speaking notaire in Toulouse experienced in international work, said the notaire handling an estate is expected to check which rules apply, if necessary by consulting a lawyer with expertise in the country’s law.
“When it comes to the English-speaking countries, to my knowledge, Scottish law is the only one with a reserve for children. In that case the notaire should consider that article 913.3 of the Code civil is inapplicable,” he said.
Scottish ‘legal rights’ provide that a person’s children have rights to set shares of moveable property (ie. not including real estate).
From our research, Louisiana law is also a possible candidate. US lawyers Scott Law Group say it is “the last state in the country that still recognises forced heirship – the idea that certain children are entitled to a minimum share of a parent’s estate that the parent cannot give away by will”.
However, this is limited to children under 24 or with disabilities preventing them from looking after themselves.
France's 2021 inheritance law
Under a 2012 EU regulation, people may choose in their will a law of their nationality to govern their estate, which many English-speaking foreigners in France took advantage of, usually to protect the surviving spouse.
However, a 2021 French law (inscribed at Code civil article 913.3) is seen by many lawyers as contradicting this by enforcing French-law portions.
It states: “When the deceased or at least one of their children, is, at the moment of death, a citizen of an EU state or lives in the EU habitually, and when the foreign law applicable to the succession permits absolutely no reserve mechanism to protect [the] children, each child… can make a compensatory levy out of property situated in France…”.
The notaire is meant to inform the children of this option. This has complicated estate planning and gave rise to complaints to the European Commission, with a decision still awaited more than three years later.
Some experts think France may ‘make a gesture’ by deciding that English-law ‘family provisions’ can be exempt.
However, this remains uncertain, as these involve certain children left struggling financially asking a court for a share, rather than obligatory portions that a testator must leave.
Irish law has comparable rules. McGinley solicitors say “there is no automatic right for a child to inherit from a parent”, but “a child can contest this by arguing that the parent has failed in their duty to provide”, leaving the matter to a court to decide.
The UK has three legal systems, however, according to the EU regulation a testator may choose the law of the territory with which they have the “closest connection”.
A testator may also simply write that they choose 'UK law' to govern their whole estate, in which case the notaire dealing with the esteate should check which law they are "connected" to.
