Marriage, wills and property

We look at the effect of the Hague Convention or Convention de la Haye - affecting foreigners who marry in France - in collaboration with notaire Rémy Landreau, from Saint-Priest.

Special rules can apply to marriages between foreign nationals or a foreign national and a French person, since the signature of the Hague Convention (Convention de la Haye), which passed into French law in 1992.

The convention has an important impact on couples in France when at least one partner is from another signatory country, which include all of the EU states and the USA. It allows them to draw up a contract stating that country's marriage laws will apply in the case of one spouse's death, and not France's.

This is particularly useful in terms of inheritance planning. In France, husbands and wives do not automatically inherit each other's estate.

Children or other relatives of the deceased can claim portions of it. To make sure the surviving spouse inherits, you could make a will, or better, have a Convention de la Haye contract drawn up by a notaire. Usually it will say that the surviving spouse will be the sole inheritor and then the property will go to the children after their death.

We advise British people to have one of these because they are used to the idea they will be the only inheritor. It makes things transparent - a will is secret until after the person's death. The Convention de la Haye contract applies to property acquired during the marriage but not property bought before the marriage or inherited. Stipulations can be made that the contract applies to all such property or just to certain kinds.

The Convention de la Haye contract can be signed at the time of marriage or afterwards.
The property concerned will also be exempt from French inheritance tax. You should consult a notaire for precise details of how the Convention de la Haye could apply to you. See www.notaires.fr for details of French notaires. English-speaking ones are identified.

My husband and I have a French home which we bought through a SCI in 1997 and the shares are distributed 50-50. My husband is 82, I am 62. In terms of inheritance, will it matter whether we are resident in UK or France as we also have a house there, which has been our main home for many years?
It seems UK property is ruled by an English will which we have and French property a French will. How do we make sure that our shares go to the right person ? H.F.
Mr Landreau replies: We have to determine which law is applicable to your home in France. In your case, you are not the direct owner - but own it through a company (SCI) in which you have the shares.
In international law, the shares are considered moveable property as opposed to immoveable property such as land. In case of death, the applicable law is the law applicable to the deceased's country of residence. If you live in France, French law applies and the best solution would be to draw up a Convention de la Haye contract with your notaire determining that English law will apply to your French moveable property instead in the case of one of you dying. You can make sure the survivor will be the only owner, your heirs inheriting only after the second spouse's death.

My wife and I have no children. We own a holiday home in France and are residents of the UK. Although we have made provision in our English wills for nephews and nieces to inherit our assets I understand that this situation will only apply to our assets in England. I still have a surviving mother together with brothers and sisters, and my wife has a brother. Who will inherit if one, or both of us, dies? D.S.

Laurent Cozic, a partner in the Groupe Monassier, Dinard (www.notaires-dinard.com) replies: As this concerns real estate owned by British residents in France, the applicable law in the case of death is that of the country where the property is situated - ie. France.
French law states that, if there are no descendants and the deceased has surviving parents the surviving spouse receives half the estate and the other half goes half to the mother, half to the father. When the father or mother has already died the share that would have gone to that person goes to the surviving spouse.

By will it is possible, since January this year, to leave the surviving spouse all the estate and leave nothing to the parents.
It is also possible to achieve this effect by a change of marriage regime - using the Convention de la Haye. In the case the effect its all the better as the procedures in the case of you or your wife dying would become simpler.

When the surviving spouse dies, the legal heirs will inherit, unless a will has been drawn up, in which case it will be applied. It is necessary to be prudent in the way an international will is drawn up, as this needs to be done according to specific basic conditions and in a specific format.