Although in French law there are constraints on the transmission of an estate due to the entrenched heirship rights of children, in the absence of children there is complete testamentary freedom.
That means it is possible to make a will, or take others steps, to leave your estate to whomever you wish.
Nevertheless, whilst no inheritance tax is payable between spouses or those in a civil partnership, there is a liability to inheritance tax for all other beneficiaries.
The rate of the tax after allowances (which are small) is at least 35% for brothers and sisters, 55% for nieces and nephews, rising to 60% for other beneficiaries. There are only minor allowances.
The use of a life insurance product called assurance vie is an effective way of mitigating any liability, although not for real estate.
Where no inheritance planning has taken place the rules that will then apply will depend on the legal relationship between a couple, whether married, in a civil partnership or living in free union.
Married Couple
In the absence of parents, the result is a simple one, as the surviving spouse inherits the whole of the estate.
Thus, Article 757-2 of the civil code states: « En l’absence d’enfants ou de descendants du défunt et de ses père et mère, le conjoint survivant recueille toute la succession. »
Nevertheless, it is still possible for the surviving spouse to be disinherited by their deceased, but only up to three-quarters of the estate. For one-quarter, the surviving spouse is a protected heir (héritier réservataire).
In addition, brothers and sisters may be entitled to claim some of the estate, in a rule called the ‘droit de retour’. A similar right exists for parents.
This applies in relation to family possessions that would have been given to their deceased brother/sister by parent/grandparent. In such circumstances the brothers/sisters can claim half of the goods.
It is possible to avoid this rule by stipulation in a gift, a will or through a marriage contract.
Where the parent(s) are alive, they would be entitled on intestacy to half of the estate (a quarter in the case of one remaining parent).
Once again it is possible to mitigate this rule through inheritance planning, such as a marriage contract, a Will or a gift between spouses (donation entre époux). The latter is often complex in international successions.
Where there is no surviving spouse, children or parents, then brothers and sisters inherit, (and then to nieces and nephews).
In the absence of a carefully prepared Will the notaire may have to instruct a genealogist to ensure that all relevant heirs have been located, which can be very expensive.
Civil Partners/Free Union
Unfortunately, in France, marriage is the only basis on which a surviving partner is automatically protected by the law.
Neither those in a civil partnership or living in free union have a right to inherit the estate of their deceased partner.
The inheritors will be parents or brothers and sisters, nephews and nieces of the deceased as above.
A civil partner is, however, exempt from inheritance tax. John Kitching, a legal specialist in French inheritance law, comments that: "For those in a civil partnership a Will is essential in order to leave the surviving partner a share of the estate. They do not inherit under the intestacy rules."
Indeed, for all international property owners, inheritance planning is necessary, either one of several property ownership options, a gift, a Will or assurance vie.
Related Reading:
