2. French Inheritance Laws

1. 2.1. Basic Rules
   2.2. Surviving Spouse
   2.3. No Surviving Spouse
   2.4 Civil Partnership
   2.5. Free Union
   2.6. Divorcing Couples

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2.2. French Inheritance Laws - Rights of the Surviving Spouse

1. 2.2.1. Not a Protected Heir
2. 2.2.2. Couple with Children
3. 2.2.3. Couple with No Children
4. 2.2.4. Inheritance Planning

2.2.1. Not a Protected Heir

Historically, the surviving spouse has had something of a raw deal in French inheritance law.

This is because the law has traditionally considered that the estate of the deceased belongs to the whole family, rather than any single member of it.

Indeed, before reforms carried out in 2002, the order of inheritance placed the surviving spouse behind that of cousins of the deceased!

Nevertheless, since 2002, the basic inheritance rights of the surviving spouse have substantially improved, and there are also additional inheritance planning measures than can be taken by a couple to ensure their interests are almost entirely protected.

Only that part of the estate belonging to the deceased is subject to inheritance laws, so a surviving spouse will normally retain ownership of at least 50% of their jointly held assets.

Below we review the circumstances of the surviving spouse where there are children from the marriage (or previous relationship), and then where there are no children.

2.2.2. Couple with Children

Children are specifically protected from being disenfranchised from the inheritance.

That part of the estate that is earmarked for descendants is called la réserve; that part of the estate that is freely disposable is called the quotité disponible.

The amount of la réserve and the amount freely disposable will depend on the number of children.

The following table illustrates the entitlement under la réserve and the amounts freely disposable.


Table: La Réserve

Inheritors	Réserve	Freely Disposable
Spouse	1/4 of estate	3/4 of estate *
One Child	1/2 of estate	1/2 of estate
Two Children	2/3 of estate	1/3 estate
Three Children	3/4 of estate	1/4 estate

*Only freely disposable in the absence of children, (or grand-children), i.e. protected heirs.

What this table is saying, therefore, is that in the presence of children (or grand-children) the surviving married spouse receives a minimum of 1/4 of the freehold of their deceased’s estate.

Thus, if you die leaving a surviving spouse and two children then, as a minimum, your spouse will receive 1/4 of your estate, the children 2/3 of your estate, with the remaining 1/12th freely disposable, e.g. to your surviving spouse.

Whilst, therefore, the surviving spouse receives a minimum of 1/4 of the estate of their deceased, provided there are no children from outside of the relationship, they also have the right to choose how it is received.

Accordingly, the surviving spouse has the choice between:

The precise division between spouse and children will depend on the number of children and the wishes of the spouse, but s/he cannot receive less than the above.

The surviving spouse can opt for one or other of the options but, in the absence of any clear declaration, then the law will imply that they have opted for life use.

Where there are children from outside of the relationship then the surviving spouse is only entitled to opt for 1/4 of the freehold, and the children receive 3/4 of the freehold. Thus, with children outside of the relationship, the surviving spouse cannot opt for life use.

Even should the surviving spouse opt for (or be obliged to take) 1/4 of the freehold, they retain the right (expressly on request) to continue to occupy the home for the rest of their life, and to use of the contents.

Indeed, during the twelve months following the death, the surviving spouse has the right to live free of charge in the property, paid for by the other beneficiaries of the estate, and to claim financial support from them (through the estate of the deceased) if they are in financial need!

Children of the couple born outside of the marriage benefit from the same rights as those of the children from within the marriage, as do children of the deceased born with another partner.

With the growth in second marriages, and as the number of children from a previous relationships increases, this is becoming an increasing problem in inheritance planning.

Clearly, if any of the children are estranged, or have a poor relationship with the surviving spouse, it may complicate settlement of the estate to the detriment of the surviving spouse.

Adopted children of the couple benefit from the same rights as natural children, but they are excluded from any rights of inheritance from their natural parents.

The grand-children receive no entitlement, unless one of the children of the deceased is themselves deceased. In which case, they step into the shoes of their deceased parent.

Finally, remember also the right of parents to the return of gifts made to their child and the special rules that apply to family heirlooms, both of which were covered in the section on Basic Rules.

2.2.3. Couple with No Children

Where the parents are still alive, and in the absence of any inheritance planning having been taken, the surviving spouse receives 1/2 of the freehold of the estate, and the parents of the deceased (if they are alive) receive a 1/4 each.

Where the deceased has only one of their own parents still alive, the surviving spouse receives 3/4 of the estate, and the surviving parent of the deceased receives 1/4 of the estate.

However, the parents have no entrenched rights of inheritance, so it is possible through a French marriage contract, a will or gift, for the deceased to ensure that the surviving spouse receives all of their estate.

In the presence of a surviving spouse, no other family members have any entitlement to the estate of the deceased.

Nevertheless, in the absence of inheritance planning being taken, remember the basic right of parents to the return of gifts made to their child, and the special rules that apply to family heirlooms, both of which were covered in the section on Basic Rules.

2.2.4. Inheritance Planning

In order to modify the statutory rights of protected heirs and others it is possible to undertake some inheritance planning measures, which would offer added protection to the surviving spouse.

Such action might include:

• Ensure the surviving spouse inherits all your estate through a French marriage contract.
• Increase the proportion of your estate they receive through gift or will.
• Buy your French home en tontine, so it is automatically transferred to the surviving spouse on first death.
• Enter into a family inheritance pact with protected heirs in which they defer some or all of their inheritance rights in favour of the surviving spouse.
• The surviving spouse can also choose not to take up all the inheritance rights due to them, which may be of interest to those with children from outside of the marriage, who might otherwise face tougher gift or inheritance tax liabilities if they were later to receive property from the surviving spouse.

Read more about these options in the section on Inheritance Planning.

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