France's 2021 inheritance law: Notaires told (quietly) of new interpretation of rules
The French government has officially communicated to legal professionals the European Commission's pre-closure notice regarding the controversial 2021 inheritance law, confirming that its forced heirship provisions do not apply when the deceased selected English law to govern their estate.
The update was delivered with minimal fanfare—a footnote link in a monthly legal newsletter and a limited addition to the Service-Public website's section for expatriates. The restricted nature of this communication has angered critics of the law, who report that many notaires remain unaware of the clarification.
Background to the dispute
France's inheritance system mandates strict protections for children through the réserve héréditaire. Under this framework, one child must receive at least 50 percent of an estate, two children share a minimum two-thirds (33.3 percent each), and three or more children divide at least three-quarters (25 percent each) among themselves.
However, EU Regulation 650/2012, which has applied to cross-border successions throughout the European Union since August 17, 2015, permits foreign nationals to choose the law of their country of nationality to govern their estates. Denmark and Ireland are the only EU member states not bound by this regulation.
The 2021 French law, adopted during the COVID-19 pandemic when parliamentary scrutiny was less intensive than usual, requires notaires to contact a deceased person's children and offer them the opportunity to claim a compensatory levy from any French-situated estate when foreign law without comparable child protection is chosen. The European Commission has been examining this legislation for more than three years as a possible violation of EU inheritance rules.
English law's family provisions
The commission recently indicated it is considering closing the grouped complaint after France clarified that English law and certain other common law systems contain family provisions that protect children. The French government stated that these provisions need not be identical to France's hereditary reserve principle. The 2021 rule should only apply when the foreign law contains absolutely nothing protective of children.
English and Welsh law grants testamentary freedom, allowing individuals to leave their estates to whomever they choose. The Inheritance (Provision for Family and Dependants) Act 1975, which came into force on April 1, 1976, provides a safety net enabling certain family members and dependants to claim reasonable financial provision from an estate, though it does not impose fixed inheritance portions like French law.
Confusion among notaires
The limited dissemination of the new interpretation has created uncertainty. Trish Miller from Occitanie, the first to lodge a complaint with the commission, has written to the Conseil supérieur du notariat highlighting that the minimal information is causing hesitation among local notaires. She cited examples of British residents in different French regions encountering notaires who either hesitate to apply the latest interpretation or refuse outright.
This confusion is particularly significant given that approximately 150,000 British nationals live in France, with over one-third being retirees concentrated in regions such as Nouvelle-Aquitaine, Occitanie, Dordogne, and the French Alps. The substantial population of older English residents means English-law estates are frequently encountered by French notaires.
The Cridon of the south-west, an advisory body for notaires on complex legal matters, confirmed in a recent publication that estates governed by English law had been those where notaires most frequently felt obliged to apply the 2021 rules. The organization confirmed its reading of the pre-closure letter: the French government's view is that the 2021 law should not apply to English-law wills.
Unresolved questions
The Cridon noted, however, that the ruling does not eliminate all complications surrounding the 2021 law, particularly regarding laws not mentioned in the government's clarification—including those of most American states. The Cridon of the north-east suggested the clarifications could render the 2021 law trivial, raising questions about whether it deserves to remain in the Civil Code.
Several issues await clarification, including whether the new interpretation applies to successions currently under way but not yet settled, and what happens to those already settled under a more restrictive view of English law. The matter also affects certain court cases involving disputes over demands for a compensatory levy.
Law professor Louis Pérreau-Saussine, who works closely with notaires, stated that while the commission's response clarifies the situation for English complainants, not everything is resolved and notaires remain concerned.
Notaire François Trémosa from Toulouse, among the experts originally consulted by the EU when creating its inheritance regulation, said only a court can provide a legally watertight decision. He indicated some notaires may advise English clients to apply to a court for a ruling on whether family provisions are relevant in their situation and whether their existence is sufficient to set aside any need to notify children of a compensatory levy right.
Without such court confirmation, some notaires may feel confident setting aside the 2021 rules for English law based on the French government's statements to the EU, while others may not. The Conseil supérieur du notariat stated that the matter is still under discussion with no definitive stance yet established.