France's 2021 inheritance law: Notaires told (quietly) of new interpretation of rules

The French government has officially shared with legal professionals the European Commission’s ‘pre-closure’ notice quoting the government’s clarifications about the 2021 inheritance law.

This states, notably, that the 2021 rules on forced heirship do not apply where the deceased chose English law to cover their estate.

However, the very limited way in which this has been done so far has angered campaigners against the law, who report that some notaires are still unaware of the new interpretation of the rules.

The ‘update’ was limited to a footnote at the end of a monthly legal information newsletter, consisting simply of a link to the commission’s site.

New information was also added to official information website Service-Public, but only in a section for people living abroad, whereas the 2021 law relates also to foreign people who live in France.

To recap, French inheritance law has a strict system of set heirs’ portions for children, however EU law allows foreign people to choose in their will the law of their nationality.

In 2021, parliament passed a law requiring that where this was taken up – and if the foreign law has no comparable system protecting children – 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. 

Stressful interpretations of law

This was widely seen by lawyers as contrary to EU law and it caused stress for many couples 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 recently said it is 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.

These did not have to be identical to France’s ‘hereditary reserve’  (fixed portion) principle, it said – the 2021 rule should only apply if the foreign law contains “absolutely nothing” protective of children.  It also promised to publish the explanations in the newsletter.

The first to lodge a complaint, reader Trish Miller from Occitanie, has now written to notaires’ professional body the Conseil supérieur du notariat to point out that the minimal information, including no communication from itself, 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 our reading of the pre-closure letter, which is 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 whether the new interpretation should be applied to successions under way but not yet settled, and what happens to those already 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 that only a court can give a legally watertight decision.

He said this could see some notaires advising their English clients to apply to a court for a ruling as to whether 'family provisions' are of relevance in their situation, and also whether the fact English law contains 'family provisions' is sufficient to set aside any need to notify children of a right to a 'compensatory levy'. 

Lacking this, he said some notaires may feel confident to set aside the 2021 rules for English law based on the French government's statements to the EU, and others may not.