French forced heirship rules: government updates Service-Public website

The French government has updated its official Service-Public information website to give clearer information on its position on the 2021 forced heirship law.

The website now clearly sets out the different scenarios that apply to a deceased person’s estate depending on whether their will is subject to French law or a foreign inheritance law.

Formerly, the website only distinguished between deaths in France or abroad.

The new presentation is in line with the clarifications that the French government provided to the European Commission after many foreigners in France complained that French rules passed by parliament in 2021 clashed with an EU Succession Regulation.

Why 2021 law caused confusion

To recap, the EU regulation states that a foreign inheritance law can apply to a person’s estate, including French property, if the person dies abroad or if they make a clear choice in their will for the estate to be subject to the inheritance law of their nationality – or one of their nationalities, if they have more than one.

A 2021 French law caused confusion because it stated that if a foreign inheritance law governs an estate but the law does not protect children’s inheritance rights as French forced heirship rules do then the notaire dealing with the estate has to step in.  

This would involve the notaire contacting the deceased’s children to offer the chance to claim a ‘compensatory levy’ out of any French-situated estate. In other words, the children would be entitled to some of the deceased’s assets located in France up to the value of the inheritance they would have obtained under French inheritance law. 

This rule applies if the deceased and/or one of their children is an EU citizen or resident.

Notaires found the new rules frustrating, and many foreign people in France, in particular English people, complained to the European Commission about France’s law, saying that it clashed with the intention of the EU regulation, to provide freedom for people to choose the law of their country of nationality. The especially affected couples who wished to leave everything to the survivor.

The explanation given by France to the commission, deemed sufficient to close the complaint file, was that the 2021 law should be understood as having a limited effect.

The French authorities said it should not apply if the foreign law contains a mechanism that protects children, citing as an example English law ‘family provision’ rules. They said the law does not need to contain something exactly the same as the French réserve héréditaire, which sets out fixed heirs’ portions.

What has changed now

The Service-Public page entitled Can we disinherit our children? (in French, Peut-on déshériter ses enfants?), now carries wording saying that if French inheritance law will apply to your estate you cannot disinherit your children due to the réserve héréditaire.

However, it goes on to say that some foreign laws allow someone to disinherit their children, their offspring, in which case the children may be entitled to a ‘compensatory levy’ from the French-situated estate, but only under the following two conditions:

• You (the deceased) or at least one of your children, must be a citizen or habitual resident of an EU state at the moment of death

• The foreign law applicable to the estate must contain no mechanism protective of children.

The section then links to the European Commission’s pre-closure letter, explaining this interpretation in more depth, including the fact that English law contains a “functional equivalent” to France’s réserve héréditaire for these purposes.

The page also clearly explains the EU Regulation rules on choice of law.

It then divides the remaining information into clarifications for estates where French law applies and a foreign law applies. 

The foreign-law section reiterates the pre-closure letter rules and provides the link again.

The new clear layout should help ensure the French government’s position is now widely understood, after more minimal publication earlier this summer. 

The EU has also now placed information on the French clarifications on its e-justice portal, in both the English-language and French-language sections of its general remarks on succession law in Europe and the EU Regulation (scroll down the pages for Related links). It was initially published in the English-language version only.

As yet, the information is, however, not mentioned on the France-specific page as the commission stated would be done in the pre-closure letter.

This comes as inheritance law campaigners Trish Miller and Ronnie Bennett have shared with us a letter they received from the European Commission, after they submitted complaints over the limited publication.

The letter directed them to Service-Public as well as noting the fact that the clarifications were linked to in June’s edition of a French government newsletter sent to legal professionals in France. 

The commission also stated that the government told the commission that it has drawn the attention of notaires professional body the Conseil supérieur du notariat to the clarifications.

The conseil has yet to put out a formal position on the clarifications to the profession, which is one reason why interpretations by notaires have not always been consistent.

The Connexion has sought to make contact with notaires who are able to help our readers to advance with their wills and inheritance planning bearing in mind the government’s expressed view.