Should we use UK law for our inheritance in France?

Reader question: We arrived in France from the UK in 2009, before the EU rule allowing the use of the inheritance law of your country of origin. We opted for usufruit wills but our circumstances have changed and we have seen friends have problems with usufruit. Can we change our wills to use UK law? 

As you are no doubt aware, French inheritance law requires a portion of your estate to be left to your children. Unlike English law, you cannot leave everything to your surviving spouse outright.

Since 2015, the EU Succession Regulation (Brussels IV) has allowed British nationals with close ties to England or Wales to choose English law to apply to their estates, potentially avoiding French forced heirship rules.

However, there is a catch. In 2021, France amended Article 913 of the Civil Code, significantly limiting this freedom. This article applies when either the deceased or any of their children live in an EU country or hold EU nationality, and the chosen foreign law does not protect children's inheritance rights as French law does.

Read our help guide for French inheritance law

For more advice on legal issues in France, contact Ashtons Legal.

Since you live in France, this means that even if you elect for English law, your children would still be entitled to claim financial compensation equal to what they would have inherited under French law. In practical terms, you cannot defer your children's inheritance until after both spouses have died, as they would have a financial claim against the first spouse's estate.

There is some hope on the horizon. Article 913 does appear to conflict with EU law, and the European Commission is investigating. They have proposed solutions to the French authorities and we are awaiting the outcome.

In the meantime, you may still need to use French legal structures to protect the surviving spouse as much as possible. This could mean keeping your usufruit (a lifetime right to use and benefit from assets) arrangement or exploring a change to your marriage regime, which is available in certain circumstances.

While I understand your concerns about usufruit based on your friends' experiences, it may remain the most practical option until the legal landscape becomes clearer. I recommend discussing your specific circumstances with a specialist adviser to explore options.

Sophie Hearle is Senior Associate with Ashtons Legal