A French law professor who acts as an expert liaison between notaires and universities has spoken out against the 2021 French law that forces French obligatory heirship rules on foreign people’s inheritances.
It comes as a senator for the Tarn has also written to campaigners against the law in terms critical of the law.
He told The Connexion he is hopeful a solution will soon be found. “This law is nonsense. It was passed based on false arguments and it’s against EU law. We are in an absurd situation," he said.
In an email, senator Marie-Lise Housseau told her local resident Trish Miller, a campaigner against the law: “There is in effect a flagrant contradiction in rules between the 2012 European regulation that says the settling of an inheritance can, optionally, be subject to the deceased’s own national law, and the 2021 law which sets aside foreign law to the benefit of French law on reserved inheritance.â€
Many foreign people have used the EU regulation in France to choose the inheritance law of their country of nationality to govern their wills and the future share-out of their estates. It was particularly used to protect the surviving spouse in the event of there being children from previous marriages.
The 2021 law states that where an estate is to be shared out according to a foreign inheritance law that lacks obligatory heirship rules, and children have not been provided for, notaires must contact any bloodline children to offer them a ‘compensatory levy’ out of the value of any French-situated estate.
The law has caused confusion among notaires and foreign people, many of whom wrote wills using Brussels IV to choose more flexible legal systems, such as English or many US states’ laws, as opposed to French law which includes set children’s ‘reserved inheritance’ portions.
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Some, as a result, did not take up French-law options which can help to protect a spouse, such as buying the family home with a ‘tontine’ clause leaving everything to the survivor (this can only be done at the time of purchase).
Many were advised by their notaires of the convenience of a ‘Brussels IV’ will, a procedure which had functioned without problems in France since it came into force in 2015 until the new French law was enforced from November 1, 2021.
The 2021 law, which modified article 913 of the Code Civil, has been subject to complaints to the European Commission (published as a ‘multiple complaint’ in February 2023). This followed our articles on the subject. Readers Trish Miller and Ronnie Bennett launched a campaign in 2024 which attracted around 150 couples impacted by it because they wrote 'Brussels IV' wills.
One recent email to The Connexion states: “After 21 years we have decided very reluctantly to return to the UK. We had both made wills before the changes. The situation became worse when our notaire said our tontine was invalid due to an age gap of 19 years.â€
There is a legal principle that a tontine clause should not be relied on where there is a strong likelihood of one particular spouse predeceasing the other.
Prof Perreau-SaussineProf Perreau-Saussine
Prof Perreau-Saussine, a specialist in international family law, contacted The Connexion after reading of the campaign, including the complaints to the Commission and a petition to the European parliament.
We discussed with him avenues that could lead to a change to the law. These include potential EU ‘infringement’ proceedings against France by the EU commission, whose decision is keenly awaited.
If it rules France to have broken EU law, the onus would be on the French government to rectify this.
A French court could also rule against the law’s validity if a person adversely affected takes a case to court and wins. French courts must put European law above French national law.
He said he believes, firstly, that “the more the number of complaints increases, the more chances there are of getting rid of the law†[ie. that the commission will take a tough stance: complaints can be lodged at tinyurl.com/complain-eu].
Secondly, in view of the commission’s statement in February 2023 in that it would “respond swiftly†to the complaints, he would have expected it to take a decision within two years – so it may be imminent.
So far, he said, the French media has expressed little interest, probably because studies have shown that “many people in France strongly support the ‘reserved inheritance’ principleâ€.
“At the same time, the majority of people [ie. lawyers] take the view that ‘article 913’ of the Civil Code is contrary to EU regulations,†he said. “The question now is what the government and the Commission are going to decide.â€
As a result, an infringement decision may be on the way – though it is not a decision that is taken lightly, he said.
“It is perfectly possible we will end up with a solution. And, in my view, the commission cannot just do nothing [ie. by simply closing the case].â€
If it opens an infringement, France will have to take action to change the law, he said. However, it is also possible the commission will not do this, but will indicate the 2021 law is, nonetheless, contrary to EU law and advise individuals take their own cases to the courts.
In which case they are likely to win, he said, and if there are several it is likely to lead to further action by the French government or the EU.
The Connexion was previously told by Franco-British honorary avocat Gerard Barron that one option for a court case would be for a person whose stepchildren have demanded a ‘levy’ to sue them in a French court, potentially also the notaire so as to ask the court to order him or her not to distribute the estate.
The 2021 law was one of several measures in a law package aimed at fighting against sectarianism, such as radical Islam. In preliminary discussions, it was claimed it might protect daughters who may receive less where a law based on the Quran was used.
In fact, Prof Perreau-Saussine confirmed that due to how the law was worded, it is thought wills based on Sharia will not be affected by the 2021 law, as Sharia includes a ‘reserved portion’ for daughters, just a lesser portion than sons.
In terms of its effects, it has turned out to be “hostile towards ‘common law’ systems, such as English and American law†– a risk which was originally warned of by the French Senate, which voted against the law.
He added that it is “dramatically bad†for the notaires, who find themselves “really bothered†by the 2021 rules.
The senator in charge of the law during its passage through the Senate, Jacqueline Eustache-Brinio, confirmed to The Connexion earlier this year that senators had, indeed, warned of “side effects, that have not been assessed by the government, on the settling of estates governed by Anglo-Saxon lawsâ€.
“Unfortunately,†she said in an email, “no current law is being planned to write this text differentlyâ€.
