Recent changes to French succession laws threaten the ability of a British national to prevent the French forced heirship rules from applying to their French assets, using the provisions of the EU Succession Regulation.
For most UK citizens, the big news of the year with respect to France involves the travel restrictions on them travelling in or through the country. However, if you have French situs assets that is the least of your worries.
The EU Succession Regulation (known as Brussels IV), which came into force in 2015, allows an individual to elect for the law of their nationality to govern the succession to their assets in most EU member states (including France). Since these rules came into force many British nationals with assets in France have made, or probably should have made, an election in their will for English law to apply to their worldwide estate. This has allowed them to take advantage of the English rule of testamentary freedom meaning they can leave their French assets to whomever they choose rather than them having to pass to fixed heirs in accordance with French domestic forced heirship rules.
However, under a new law, which came into force in France on 1 November 2021, heirs who would be entitled to a portion of a deceased’s estate under French forced heirship rules but have been denied their portion, because a foreign succession law applies to the deceased’s estate, can claim their portion against any property of the deceased located in France. This will only apply where the deceased, or any child of the deceased, is (at the time of the deceased’s death) a national of, or habitually resident in an EU member state. It may not, therefore, impact the planning of some British nationals but many will have children who are resident in, or nationals of, an EU member state and so will be affected by this change and should therefore review their estate planning for their French assets.
Although the EU Succession Regulation allows EU members states to refuse to apply certain provisions of the law of your nationality if they are contrary to local public policy, it is considered that this new French law conflicts with and undermines the EU Succession Regulation. The French law has reportedly been brought to the attention of the European Commission but any enforcement action against France will likely take years.
Merry Christmas!
Stephen Parnham
