The European Commission has closed the file on the multiple complaints submitted by foreign people in France against France's 2021 forced heirship law.
It has accepted explanations provided to it by France which were published by the commission in an open 'pre-closure letter' in June.
It comes after France was suspected of a breach of an EU regulation that allows foreign people living in an EU country, or owning property there, to designate the law of their nationality to cover their whole estate.
A law dating from 2021 had been widely interpreted by notaires as meaning that where a law without forced heirship rules like France's was chosen – such as English or those of many US states – notaires should contact their children to offer 'compensation' out of any French-situated estate.
However, France said in its remarks to the commission that if the foreign law has anything at all protective of children, that is sufficient to remove this requirement. It cited English law in particular, due to its 'family provisions' rules that can help certain needy children make a claim from the estate.
The commission says it is now satisfied that France has communicated explanations to the French legal professions about its interpretations, as promised, in June's lettre de la Direction des affaires civiles et du sceau (DACS), and on Service-Public.
However campaigners have told The Connexion they are lodging fresh complaints to the commission on the basis of the limited communication so far, which is reportedly leaving some notaires still unsure of the rules.
"This vague gesture is a sign of bad faith on the part of the French authorities," said campaigner and Connexion reader Trish Miller, who is considered to have been the first to have originally lodged an official complaint against the 2021 law, in late 2022.
After further complaints followed, they were publicised as a 'multiple complaint' in February 2023, which has now been closed.
Communication of the French government's clarifications so far is limited to:
An EU closure notice
The commission's pre-closure letter
A link to the letter provided by the French authorities in the 'Ressources' section on the last page of June's lettre de la DACS
A link to the pre-closure letter via France's official information website Service-Public page about whether it is possible to disinherit children, which is found only in a section for people living outside France and only in the French-language version of the page
The European Commission states it has also published the explanations on its e-justice portal section on inheritance, however, we have not identified the new material so far.
Why the multiple complaint was originally made
To recap, French inheritance law has a strict system of set heirs’ portions for children (hereditary reserve), however EU law allows foreign people to choose in their will the law of their nationality. It also states that where no choice is made, the default law is that of the person's place of residence (eg. California for a second-home owner who lives there).
In 2021, France's parliament passed a law requiring that where a foreign law is set to apply to a person's estate – and if the foreign law has no system protecting children comparable to France's hereditary reserve – notaires should get in touch with a deceased person’s children to offer them the right to claim a ‘compensatory levy’ out of any French-situated estate. For people living outside France, this only applies if they or at least one of their children, have an EU nationality or live in the EU.
This was widely seen by lawyers as contrary to EU law and it caused stress for many couples living in France who had wished to protect the survivor by choosing a more flexible law.
This was subject to many complaints to the European Commission.
However, the commission said in June it was considering closing the grouped complaint after the French government wrote to it saying that English law – the law of most of the complainants – and certain other ‘Anglo-Saxon’ laws contained ‘family provisions’ rules that are protective of children. It also promised to publish the explanations in the DACs newsletter.
Ms Miller from Occitanie, has now written to notaires’ professional body the Conseil supérieur du notariat to point out that the minimal information is leading to uncertainty among some local notaires.
She wrote: “I’ve been informed of this by three British people living permanently in different regions of France and here in the south-west I can personally attest to knowing two, one who is hesitating and one who refuses [to apply the latest interpretation]. It is unsatisfactory."
CRIDON-level assistance
When unsure with regard to complex legal matters, including on cross-border matters, notaires may seek help from bodies called CRIDONS.
The CRIDON of the south-west published an article recently confirming that estates governed by English law had thus far been the ones where notaires had most frequently felt obliged to apply the 2021 rules.
This is likely in view of a substantial population of older English residents in France and the fact English law has more testamentary freedom than French and no exact equivalent of the French fixed heir’s portions.
However, it also confirmed that it is the French government’s view that the 2021 law should not apply to English-law wills.
It added, however, that the ruling does not remove all the complications around the 2021 law, notably with regard to laws not mentioned (these include those of most American states), which it said only abrogation of the law would completely remove.
It also said it was looking forward to seeing the explanations in the newsletter.
The CRIDON of the north-east wrote in another piece that the clarifications publicised by the commission could see the 2021 law become anécdotique (trivial), raising questions as to whether it deserves to remain in the Civil code.
“Most laws that do not have a hereditary reserve have, on the face of it, mechanisms that are protective of children,” it said.
We asked the Conseil supérieur if it plans on wider publication of explanations.
However, we were told: “This is all still under discussion, so there is no definitive stance yet.”
Other areas still to be clarified include what happens to successions that have already been settled applying a more restrictive view of English law.
The issue also has bearing on certain court cases under way with regard to disputes over demands for a ‘levy’.
Law professor Louis Pérreau-Saussine, who works closely with notaires, said: "I think that, for the English people who originally complained, the response given by the commission clarifies their situation. However, not everything is resolved, and the notaires remain concerned."
Notaire François Trémosa, from Toulouse, who was among experts originally consulted by the EU when creating its inheritance regulation, said uncertainties could see some notaires advising their clients to apply to a court for a definitive ruling as to whether the 'compensatory levy' rule should apply in their case.
