Headdon Consulting is a French registered company offering independent legal advice and assistance to English speaking people around the world who are purchasing, selling or own real estate property in France, whether it be a holiday home, a principal residence or in connection with a small business.

The law in relation to the inheritance rights of a surviving spouse in France has recently changed. The changes came into force on 1st July 2002 and are contained within a law of 3rd December 2001. From the point of view of the prospective purchaser, the new law has not necessarily provided any greater protection and in some cases has complicated the inheritance issue even further.

The changes that have been made:

• A husband or wife is entitled to a minimum ¼ of the property of the deceased spouse, be the property jointly owned or in the deceased spouse’s sole name;
• If the couple have children only from their marriage, the surviving spouse has a choice between ¼ of the property owned by the deceased spouse or the ‘usufruit’ (the ‘usufruit’ is a life interest entitling the survivor to exclusive possession of the property);
• If the couple have children from previous marriages or relationships, the spouse is only entitled to take ¼ of the property and cannot opt for the ‘usufruit’;
• If the couple do not have children (or grandchildren if the children are no longer alive), the surviving spouse is entitled to ½ of the property owned by the other if both parents of the deceased are still alive or 3/4s if there is only one;
• If the deceased does not leave children, grandchildren or parents, the surviving spouse will inherit the property.

Important points:

• The surviving spouse has not become a ‘reservataire’ or ‘forced heir’ in the same way that children or parents are;
• As a result, it is possible to limit the rights of a surviving spouse by will to the minimum ¼. For example, if the deceased spouse does not leave any children, grandchildren or parents then the spouse could have specified in a will that the survivor is only to receive ¼ of the property and the rest is to devolve elsewhere;
• The new law provides a minimum protection. Husband and wife remain free to make separate provision by way of gift, will or marriage contract in order to offer each other greater protection;
• Remembering that what is stated in the final deed signed upon completion of the purchase is often crucial to the ultimate inheritance outcome, it remains important to address these issues prior to finalising a purchase if you wish for greater security than the new legal minimum.

This legal update concerns an issue which has received extra emphasis as a consequence of the changes in the law referred to in Part 1 of this legal update.

The new law has abolished, by legislative means, any distinction between children born in wedlock and those who were not so born. This distinction had, in any event, been deemed to contravene the European Convention on Human Rights as the previous law allowed children born out of wedlock to be treated differently for inheritance purposes.

A recent decision of the French final appeal Court (Cour de Cassation) of 29th January 2002 upheld the right of a child born from a previous ‘relationship’ to contest the validity of a clause in a marriage contract attributing all the property owned by the spouses to the survivor of them, thus excluding the child from the inheritance. 

The impact upon the children of the spouses of such a clause in a marriage contract should always be considered when contemplating the use of this instrument, especially when one or both of the spouses have children from other marriages or relationships.

However, it should be borne in mind that all of a spouse’s children are able to contest such dispositions and that it would seem that there is no particular time limit to the contest (other than the thirty year prescription rule) and that the action has retroactive effect.

The consequences could be far-reaching for a spouse who sees his or her inheritance dramatically reduced or even for a third party who has since acquired property in which the child claims an interest.

© Headdon Consulting

Published with the kind permission of Headdon Consulting.