France’s Justice Ministry has written to The Connexion to explain its reasons for its controversial 2021 law on inheritance after we pointed out its negative effects on many of our readers.
It says that it considers the law – which some readers have told us is forcing them to sell up and leave France - to be fair and justified.
The reasons given, which we publish in full below, are essentially those that were originally set out by civil servants in an ‘impact study’ published before the law was debated by parliament in 2021 (see pages 136-146 of the study here).
They relate to stopping testators (will writers) discriminating against some of their children on unfair grounds.
It comes as the European Commission is considering multiple complaints against the 2021 law, which it has referred to as a “possible breach of EU law”.
Read more: EU commission replies - latest on French inheritance law
How the 2021 law came about
The law we call the ‘2021 inheritance law’, was originally article 24 of a wider bill, presented under Jean Castex’s premiership, called ‘The law reinforcing respect of the principles of the Republic’. It aimed, in particular, at combating Islamism.
Article 24 sought to create a rule whereby France’s traditional ‘reserved portions’ for children (obligatory heirship of part of the estate) could be enforced even where a foreign legal system was going to govern the share-out of a deceased person’s estate.
This can happen, notably, when a foreign person dies in France and they had used a 2012 EU regulation, in force since 2015, to choose the law of their country of nationality to govern their whole estate. This regulation is commonly known as Brussels IV.
Many readers are affected, having chosen in their wills British, US or Dutch legal systems which allow great testamentary freedom as to how property is left by will. They typically did so because they wanted to protect the surviving spouse, especially where there are stepchildren from previous marriages.
Read more: French inheritance law - calls for change grow
However, Article 24, once passed by MPs, rewrote article 913 of the Civil Code, to give children who have ‘lost out’ under such wills the right to claim compensation. Article 921 then requires the notaire dealing with the estate to notify these children about this.
The ‘impact study’ showed there was a particular concern about daughters potentially being treated poorly by testators using foreign legal systems, with one section stating: “The deceased could, in effect, in his or her will, reproduce the inequalities instituted by discriminatory foreign laws (such as inheritance laws inspired by the Coran, notably)”.
The study (page 136-146) also showed the government had looked at certain Brussels IV clauses which say a choice of law can be set aside “exceptionally” where the choice breaks l’ordre public (public policy in English legal jargon), referring to the usual rules of orderly society.
It acknowledged that some individuals would be affected by the new change, as the 2021 law “somewhat reduces their testamentary freedom”, and that notaires would be affected as they would have to apply the new rules.
The Justice Ministry’s explanation
The Justice Ministry told The Connexion: “Article 24 of Act no. 2021-1109 of August, 24, 2021 reinforcing respect for the principles of the Republic introduced a third paragraph to article 913 of the Civil Code.
“This paragraph, which applies whenever a French court has jurisdiction or a French notaire is called upon to settle a succession, provides that:
- ‘where the deceased or at least one of his or her children is, at the time of death, a national of a member state of the EU or habitually resident there, and
- where the foreign law applicable to the succession does not allow any mechanism for reserved rights to protect children,
- each child, or his or her heirs or successors, may make a compensatory deduction from existing property situated in France on the date of death, so as to be restored to the reserved rights that French law provides to them, within the limits of those rights'.
Read more: Taxes, forced heirship and property ownership - understanding French succession law
“This new paragraph introduces a right to a compensatory levy to enable children disinherited by the deceased to recover, if they ask for it, the amount of their reserved portion of the estate from property that is part of the estate and is located in France, when the French court or the notaire responsible for the case has to apply a foreign law and that law does not provide for any reserved portion mechanism to protect the children.”
Law represents a ‘fair balance’
The ministry added: “The aim of this new provision is to strengthen the protection of ‘reserved’ heirs by creating a greater legal framework around the testator’s wishes in situations where part of the estate is situated in France, whatever law is going to apply, so as to limit possible discriminations that the testator could make between his or her children, due to their sex, orientation, religion, parentage or indeed order of birth.
“This objective is in conformity with the prohibition of all forms of discrimination laid down in Article 21 of the EU's Charter of Fundamental Rights, aimed at, notably, in introductory note 58 of the inheritance regulation no. 650/2012.
“The right to a compensatory levy is a provision of international public policy.
"Applying it does not lead to the applicable law being set aside but only to its effects being corrected, taking into account the mechanism for reserving rights to protect children. This reasoning is consistent with what is permitted by article 35 of the regulation.
“What is more, article 913 of the Civil Code ensures strict respect for the testator's freedom of choice to make his or her will subject to a particular law, as provided for in Article 22 of the Regulation.
"Thus, this law was designed in accordance with the European regulation and does not disregard its objectives.
“Article 913 paragraph 3 of the Civil Code thus ensures a fair balance between, on the one hand, the freedom of the deceased to dispose of his or her property and, on the other hand, the necessary protection of the deceased’s family members against any discrimination to which they could be subject.”
Senators originally disagreed
While the government’s view was originally backed up by France’s top administrative court the Conseil d’Etat, which agreed (page 22) the new rule could likely be justified by public policy, the Senate’s laws commission notably disagreed.
It advised (page 19) striking out article 24, saying: “This article, the aim of which is to ‘put an end to the application of foreign inheritance rules on our territory that harm women’, is in fact, based on principles whose actual benefit to women is very uncertain: in the event of foreign law discriminating on the basis of sex, the French judge or notaire can already set it aside in the name of French international public policy. What is more, this article would have ‘side effects’, which have not been assessed by the government, when settling successions governed by Anglo-Saxon laws.”
The Connexion publishes a guide to Inheritance Law and Wills in France, priced €14.50.
