Many international couples enter into a French marriage contract for inheritance planning purposes, but some notaires appear to be charging unnecessary fees for such work.
One of the key priorities of many international buyers who relocate to France is to make provision for their spouse on their death.
It is a task made more difficult by the inheritance laws that apply in France under which children are protected heirs.
These laws mean that your children have an automatic right to part of your estate, and the more children you have the bigger their share.
The surviving spouse is not left without any protection, for they have a right to life use of the property as their principal home.
In recent years the position has improved considerably, as under European laws it is possible to adopt the inheritance laws (but not taxes) of your home country for the purposes of inheritance, which you can do through a will.
However, another alternative is to enter into a French marriage contract called regime de communauté universelle, with the clause 'd’attribution intégrale', which prescribes that all property in the marriage is communally owned, including that gifted to or inherited personally by one of the spouses.
The contract is merely a way of regulating the ownership and transmission of assets in a marriage and does not involve annulment of your existing marriage. It is available to both residents and non-residents.
On the death of the first spouse the surviving spouse automatically becomes sole owner of all of the property, and the rights of the children are deferred. It is the clause 'd’attribution intégrale' which ensures that the surviving spouse succeeds to the totality of the inheritance.
One other benefit of such a contract is that it greatly eases the costs and formalities of the succession.
Such contracts can only be drawn up under the auspices of a French notaire, the fee for which should be no more than a few hundred euros, although we regularly here of expatriates paying several thousand euros.
As usual, when it comes to notaire fees the position is not always straightforward, as the fee may be made up of several elements.
The basic fee is around a couple of hundred euros and is regulated by the government.
In addition, the notaire is also able to charge an additional fee for the advice they provide, which can be freely set by them. In most circumstances this charge should a maximum of €200, even if it is applied, which is not always the case.
On this basis, the total charge applied by the notaire should be no more than €300 to €400.
There should be no registration taxes payable, as this type of marriage contract is exempt from taxes (Article 1133 bis Code général des impôts).
However, the charge can rise considerably if you wish to declare property within the marriage contract. That is to say, if there is property that is only owned by one spouse that is to be included in the contract, there are additional fees payable.
These fees are once again on a scale rate regulated by the government, and, broadly speaking, they come out at around 0.3% of the value of the share of the property being included. In addition, 0.10% stamp duty is payable.
You should avoid even listing the property in the marriage contract, as this can mean an increase in the fees.
Higher charges may also be payable where the adoption of the marriage contract involved other issues than merely the right to succeed to the estate of the deceased spouse, or there was a need to liquidate an existing French marriage contract, something that would not normally apply to a married couple from abroad.
If you are advised by the notaire you need to go to court to obtain court approval of the contract then you need to query why this is necessary, as such a requirement does not normally apply to those married outside of France, although the law of succession in some countries has limitations on the extent to which a couple may adopt such a contract.
Neither is there any need to transfer title of the property to joint names, as this will incur substantial additional fees and taxes.
If you wish to enter into such a contract you might be well advise to ask your local notaire what they would charge, and if you do not like what they say, try another one.
There are limitations of this contract for those with children outside of the marriage, and some inheritance tax disadvantages, about which you can read in our on-line comprehensive Guide to French Inheritance Laws and Taxes.