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Inheritance Planning Still Makes Sense

Thursday 01 November 2007

Whilst the Government has abolished inheritance tax between married couples, the entrenched inheritance rights of children remain in place.

Accordingly, in the absence of inheritance planning measures being taken, children will have a share in the inheritance.

These rights extend to children from a previous relationship, who have the same rights as those from the present marriage.

As the surviving spouse retains a right to live in the family home, sharing of the inheritance on first death may not present a problem.

Nevertheless, it does mean that your surviving spouse lacks complete freedom of action, as other inheritors may, for instance, oppose the disposal of property jointly held, or demand their share in the proceeds of the sale of assets.

If relations between some family members are fractious, then it could (and often does), lead to stalemate or legal dispute.

There are various solutions to this problem, the most practical of which is to enter into a French marriage contract, called régime de communauté universelle, with the clause d’attribution intégrale.

Under the terms of this contract, the surviving spouse inherits the whole of the estate of their deceased.

However, such a contract cannot be used where there are children from a previous relationship. This is because it disenfranchises those children who are not a blood relation of the deceased.

One way around this problem would be to enjoin all family members in a family inheritance pact, which provides for the possibility of a global inheritance settlement with the whole of the family.

Short of a marriage contract or family pact, it would also be possible to buy your French property en tontine, which would ensure it passed entirely to the surviving spouse on first death. As there is no inheritance tax between man and wife, this is no longer an ownership structure fraught with the tax liabilities it used to be.

Finally, you could also make a gift to your spouse, or make a will, although in each case it could only cover that part of your estate that was freely disposable.

You can read more about all of these solutions in our comprehensive Guide to Inheritance Laws and Taxation.

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