French Successions and the drafting of wills with a French
The general consensus after the coming into force of the
succession Regulation (EU) n°650/2012 was that UK habitually
resident individuals could effectively circumvent the French forced
heirship rules over French immovables by a will applying English
law. That meant that certain issue could be excluded from benefit
under a will or succession where they could not have been prior to
the Regulation coming into force. Where the British (i.e. English)
testator resident in France chose to use English law as the law of
his British Nationality to govern his succession, that was also
considered possible. However, that was to reckon without the
underlying depth and robustness of the French constitution which
requires issue to be treated equally and to take equal shares of
what is not part of the quotité disponible or free portion
with which our Scottish colleagues will be more familiar.
As indicated previously, the French Parliament have now passed
the law which now enables not only French resident children to
challenge such arrangements, but also children resident in other EU
jurisdictions to claim French forced heirship rights over property
situated in France irrespective of the law applicable under the
Regulation to reacquire or top up their inheritance to a French
The Notaire responsible for the French succession has
to call each potential heir in and inform them of their rights
under the prélèvement compensatoire.
Whilst certain provisions of the law were subject to a review by
the Conseil constitutionnel, that body was not called on to rule on
the proposed amendment to article 913 introducing this
Those who drafted wills intending to oust French forced heirship
rules should review these promptly with their clients.
However, it does not end there. Where any client has French
situs assets, and has sought to apply, for example Shariah law to
their succession, whether by nationality or simply on the basis of
habitual residence in a Shari'ah jurisdiction , thus restricting a
daughter's entitlement to one half of that of their their male
siblings, a daughter resident elsewhere within the EU or any other
sibling can go to France and plead the new prélèvement to have her
share increased out of the French assets in accordance with French
principles. Indeed the notaire responsible for the succession to
the deceased's assets in France has to call al the heirs in and
inform them of their rights in this area.
The same possibility is open to disgruntled issue of British
parents who have been effectively disinherited by reference to
French standards, provided that they are resident within the EU or
if the deceased was resident in the EU (not just France).
My literalist translation of the amendment is as follows:
I. - Article 913 is completed by a paragraph drafted as follows:
« when the deceased or at least one of their children is, at the
moment of their death, a national of a Member State of the European
Union or resides there habitually, and when the foreign law
applicable to the succession provides no reserve mechanism
protecting children, each child or heir or their successors can
deduct a compensatory prélèvement on existing assets,
situated in France on the day of the death, so as to be
re-established in their reserved rights granted by French law,
within their limits.»
Whilst spouses are now considered to qualify now as reserved
heirs in another category, they do not appear to benefit from the
prélèvement. This change is of particular interest to
second marriages where there are inevitabley issues as to whether
the second spouse takes the property or not.
As you can see, the provision is widely drafted and it only
takes one child to be a national of or habitually resident within
the EU for the amended article 913 to apply to their benefit and,
apparently, of all.
It does not only apply to immovables, but also to movables such
as shares and bonds.
Note that, post Brexit, British children cannot benefit from
this prélèvement unless they have a dual EU nationality,
live in Europe or finally if one of their siblings is an EU
national or EU resident.
As ever, I am available for further information or assistance,
whether to parents or to children.