Potential solution to controversial French forced heirship law

Campaigners against France’s 2021 forced-heirship rules are turning to a little-known aspect of French marital law as a potential partial solution for some couples. 

With an EU ruling still pending on whether the forced-heirship law breaches bloc rules, they are investigating whether a préciput could help keep some assets outside the rules. 

France reserves shares of an estate for children – half for one child, one-third each for two, and three-quarters shared between three or more. 

Since 2016, however, EU succession rules have allowed foreign residents – or owners of EU property – to choose in a will for the law of their nationality to govern their estate. 

This changed in 2021, when France ruled that children must be informed of their right to claim a ‘compensatory levy’ from French-based assets. 

It has worried many foreign couples who planned to leave everything to the survivor under, for example, English law or many US state laws. 

After complaints in 2022–23, the European Commission suggested France consider changes. France’s Justice Ministry has replied, but the contents and next steps remain unknown. 

Campaigners Ronnie Bennett and Trish Miller have written to the Justice Ministry, the commission and the British Embassy in Paris, in hopes of obtaining further details. 

In the meantime, they are seeking formal legal advice on whether the préciput could help. 

From our research, this applies only where a couple has a ‘community’ marriage regime. 

All couples in France have a matrimonial regime determined by where and when they married, how long they have lived in France and whether they have signed a marriage contract. 

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In community regimes, some or all assets are jointly owned, meaning that on death half normally forms the deceased’s estate and may be subject to forced-heirship rules. 

A strong option, which couples can change to with help from a notaire, is communauté universelle with a clause of total attribution to the survivor, under which all the jointly-owned assets pass to the surviving spouse. 

As with any regime change, adult children must be notified and may object, in which case a judge decides. 

Community regimes can apply, for example, to people married in France (with regard to property acquired during the marriage) or who married in jurisdictions with similar systems, such as California. 

They can also apply to couples who married between September 1, 1992 and January 29, 2019 and who have since lived in France for 10 years or become French. In the latter case this relates only to assets acquired since the regime switched (ie. after 10 years or upon becoming French). 

A préciput allows specific community assets – such as the family home – to pass directly to the survivor before the rest of the estate is shared. 

It is therefore a more targeted and often more acceptable alternative to universal community with full attribution, as it can still leave part of the estate to children. However, children must be notified at the time of opting for it. 

They could also attempt to challenge the effects after their parent’s death through an action en retranchement if they believe their reserved rights were harmed when the estate comes to be dealt with. 

The outcome would again be decided by a judge. However, there is no specific need for the notaire to draw attention to the use of the préciput. 

Mr Bennett said: “We are frustrated to have had no replies from the minister or ambassador, and the commission merely says it will inform of any developments via its website. So, I am hoping the legal analysis will give something positive.

“A competent notaire may also be able to advise on this, but not everyone has access to a notaire knowledgeable about matters outside standard procedures such as house purchases and basic inheritance law.”