French inheritance and law choice change: Which wills are affected?

Reader question: A notaire has told us that the EU inheritance regulation allowing people in France to choose the law of their nationality to apply to their estate after their death no longer applies. Is this true and does this apply only to new wills - or to all wills written since the regulation came in, in 2015?

This new French law has been causing concern among the legal profession in France, as it does indeed complicate matters with regard to the rules on choice of law that have been in force since August 17, 2015.

What is the problem?

French réserve héréditaire (forced heirship) rules are strict about the protection of children’s rights. They state that an only child must receive half the estate, two children must share two-thirds, and three or more more children must share three-quarters of the estate.

Under basic French law rules, anyone dying resident in France has their moveable assets (shares, bank accounts) and French-situated real estate subject to French succession law. As for real estate situated elsewhere, French courts could not enforce French rules abroad, but it would be legally possible for a child to seek compensation from French-based assets if they lose out with regard to how these are left.

For residents outside France, any French-based real estate can be subject to French succession law.

The EU regulation gives the option of non-French nationals who live in France choosing the law of their nationality to apply to their whole estate instead, and many people have made use of it since 2015. It also includes a new default rule that where no choice is made then the law of the place of residency of the deceased applies to the whole estate. France signed up to the regulation and had so far respected the rules.

This meant, for example, an English person living in France could choose English law, which has no forced heirship rules, if they wanted to disinherit a child or children or leave their estate to them in different proportions to those dictated by French law. The choice does not affect French taxation rules though.

Now the new French law seeks to enforce French heirship rules in situations where:

• The deceased or their children is EU-resident or an EU national
• The foreign legal system stated to apply to their estate does not include any forced heirship rules (for example it would apply where English law was elected)

Where these apply, the new law says that the notaire dealing with the French estate should notify any children of a right to seek compensation from any French-based estate, up to the amount they would have had under French law rules.

Which wills are concerned by the new rule?

This applies to all estates where the succession process has started since November 1, 2021, so that is the key date, not the date of when the will was made, so wills made before this date may be affected as well as wills made afterwards. The succession process is ‘opened’ once a notaire has been assigned to make contact with the heirs and carry out the necessary formalities, after a death.

Understandably, this has created new complications for notaires and for foreign residents in France as well as for those who live abroad but have French property and have an EU nationality or their children are EU citizens or live in the EU.

Read more: Lawyers in France frustrated over new wills law

Will the new rule be enforced?

Many lawyers think that a challenge in the European Court of Justice is likely to come, as the French rule appears to contradict EU law, which should usually take precedence; however this could take years.

In the meantime the new rule is meant to apply, so some lawyers are suggesting that those affected take advice about various old French law mechanisms that may help them to achieve their wishes despite the new law.

It should also be noted that the new law does not impose the forced heirship rules automatically and it will only pose a problem where children choose to contest their parents’ wishes.

We note that the wording of the new law also raises questions about whether it will be void if an option was made for Scottish law, as this does contain some forced heirship rules (with regard to moveable assets only).

However, usually these Scottish forced heirship rules only apply under Scottish law to those domiciled in Scotland, so it could be that this would only help those who live in Scotland, have French property and EU citizen/resident children. We are checking with Scottish lawyers as to this point.

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Law of nationality choice at risk in some wills