How to get round the French inheritance law on reserved heirs
Partner article: We guide you through your options, from a tontine clause to usufruit and the droit viager d’usage et d’habitation
Many couples seek to avoid French forced heirship and protect the survivor by electing for English law to apply
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Reader question: We have children from other marriages and worry that, due to the 2021 French inheritance law, the survivor could lose their home.
Is there a solution?
The 2021 law introduced a right for reserved heirs (eg. children) to seek compensation where an estate is subject to a foreign law that does not offer such rights.
It applies where the deceased or at least one of their children was/is an EU national or resident.
While the notaire is obliged to inform any children of their right, claiming it is optional.
Only monetary assets based in France are available to satisfy a claim.
Children have no automatic right to the French home, although it may be sold if liquid assets are insufficient.
Many couples seek to avoid French forced heirship and protect the survivor by electing for English law to apply.
However, this does invoke the 2021 law, and makes the estate vulnerable to challenge.
There are some alternative options.
A tontine clause (similar to the UK’s joint tenancy ownership) sees the survivor treated as having always been sole owner of the property.
It takes precedence over wills but must be taken out at the time of buying it.
In French law, you can give the survivor enhanced rights under a will with the choice of inheriting the entire French estate as usufruit (like a life interest), the entire disposable portion (once the reserved heirs have received their entitlement), or ¼ in full ownership and ¾ as usufruit.
Where the survivor inherits a usufruit, their interest cannot be freely disposed on their own death.
However, holders of the bare ownership are unable to force a sale, and are equally responsible for maintenance of the property.
Another option is the droit viager d’usage et d’habitation.
The survivor retains the right to live in and use the contents of the deceased’s residence if they also used it as a main residence.
They must actively claim this right within one year of the death.
This reader question was answered by Antonia Ridley-Hughes of Ashtons Legal
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