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Going Home if one Partner Dies


Bodget
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Hi - First time so sorry if I've missed this subject on the

forum.

We are planning our retirement in France

and like a lot of people, it’s important to make sure that the surviving

partners options are maximized in relationship to France’s succession laws. We have

one grown up child each from previous marriages and have been told that even

with Clause Tontine or one of the Communaute Universelle derivatives , if the

surviving partner wants to return home, the rights of the protected heirs i.e.

our children are automatically invoked. This would drastically reduce any

capital needed to buy a house back in the UK.

Can anyone confirm this or give us an indication of the

likely situation please. Ultimately, I know we will have to get expert advice before

we move.

 

Thanks

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You are right you definitely need expert advise - and may even find that France is not right for you on the basis of that advice - but broadly I believe (note believe, I am not certain) that you are right in your general view of things.
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If a property is bought in Clause Tontine the surviving partner becomes the sole owner and can do with that property what they wish. The remaining estate of the departed spouse if in his/her sole name is subject to the normal inheritance rules of France.
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This is something I'm researching and I'd welcome your thoughts.  My husband and I got married last year in Mauritius and our marriage contract is "Regime Legale de Communaute",  We're based in the UK but moving out to France later this year when the house purchase papers are completed.

I have never been married before, but my husband was divorced (with no payments or claims from his ex-wife) and has two grown up children, both in their forties.  Ten years ago, when we weren't married to each other, we bought a small holiday home in the Creuse under the 'tontine' regime which was suggested to us at the time but which had tax implications for the survivor.  Now, as a married couple, we're told the tontine isn't needed but we still want to ensure each other's protection and that the survivor has full entitlement and rights to the property and assets, in effect to disinherit his children.  Has anyone any thoughts on this, does the 'universal community' give us that protection.

Unfortunately, we do have to ensure that his children don't have any rights, nor any members of my family (siblings).  The reason is that it's difficult being a step-parent to grown-adults who see their 'rightful inheritance' being snatched away from under their noses!  Therefore, unfortunately, we have to ensure that each of us has full entitlement to what we own and that no other family members could make life difficult if there was a death.

Your advice and thoughts will be very welcome.  Naturally we shall take legal advice but I'd like to come prepared with some thoughts and ideas and case-histories that I can explore with our legal chap.

Many thanks, everyone

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[quote user="catalpa"][quote user="KathyC"]Interesting that you use the term "home" to refer to the UK. [/quote]

Why? I'd say it's entirely normal. At this time, home is the UK for the OP. [blink]
[/quote]

Yes, of course you're right. I was projecting into the future.

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Kathy - it's an interesting point, though. At what point does a new country genuinely become home - I mean as an automatic mental image? We've been here 3 years and I think only recently has the house and life here has truly beome "home" with the resonance that "home" conveys to me. But I probably shouldn't take this thread off topic. [;-)]

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[quote user="Logan"]If a property is bought in Clause Tontine the surviving partner becomes the sole owner and can do with that property what they wish. [/quote]That's my understanding also, but I think the OP was suggesting that if the surviving partner, having become the owner of the property, returns to the UK (or anywhere else, presumably) the rights that the protected heirs would have had on the second death are somehow "brought forward", and they acquire rights to some of the property while the owner is still alive.

I know that a tontine clause is not the same as a CU regime, but I think this question is relevant to both.

I had not heard anything like this, but it could be hugely important.  If anyone has the answer, I'd certainly like to know.  My wife and I have all our assets under the CU regime, and although we are happily resident in France we have always recognized the possibility that when one of us dies the survivor might decide to live in the UK.

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The [url=http://www.notaires.fr]French notaires website[/url] offers a concise explanation of the respective inheritance conditions associated with tontine and change of marital status (I've tidied up the translation a bit):

"Tontine" is a creation of French law comparable to "joint tenancy". With a "tontine" agreement, the purchasers of a real estate agree that the survivor will become the sole owner of the jointly held property. With this agreement, the surviving owner can't be worried by the privileged heirs of the deceased (heirs with a reserved share). A "tontine" clause can be inserted in a purchase contract when the real estate is located in France and when French law is the law applicable to the contract.

If a married couple own an immoveable asset in France, or on the point of purchasing, they can choose the marital scheme with a clause awarding the joint ownership to the surviving spouse. The latter will be the owner of the real assets and may dispose of it as he wishes. The privileged heirs of the couple (common children) will receive their reserved share at the death of the second spouse. But if there are children who are not common to the couple, then the privileged heirs of the deceased can ask for their reserved share immediately after the first decease.

In both cases, the surviving spouse can sell the property and move back to the UK.  Once this happens, there is no longer a property to fall within French inheritance law, so on the death of the second spouse, UK inheritance law will apply. 

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Sunday Driver's translation of the French Notaire's website is very useful, but having read it several times I think there is actually a distinction made between the circumstances following a 'first death' under the tontine regime as opposed to the communaute universelle.  As I understand it, with a tontine in place, the surviving spouse is safe from ever having to give a share of the marital home to the former spouse's children by a previous marriage.  She inherits the whole property and can sell up and move to the UK and leave everything to the local cats' home or whatever, or remain in France - in that house or another, in which case the property will go to her own reserved or nominated heirs.

In the case of the CU regime, the children of the couple must wait until the second death to inherit their share so presumably the surviving spouse can do as she wishes with the marital home in France (stay put, sell up etc).  However "if there are children who are not common to the couple, then the privileged heirs of the deceased can ask for their reserved share immediately after the first decease".  This surely means that these heirs could at worst block the sale of the marital home (if, for example, they saw it as an investment or wanted to use it as a holiday home) and at best could demand their share of the proceeds of any sale, leaving the widow unable to buy another house here, let alone in the UK.

I don't know if it would be possible to use a will or usufruct to give the widow protection from the children of her deceased partner, but it would appear from the above that where protection from predatory stepchildren is more important than tax payable on the first death then the tontine is probably a better bet than a CU regime. (Always remembering that qualified legal advice is essential in such complicated circumstances).

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Val

Your interpretation of those extracts concides with mine.  Both arrangements allow the surviving spouse to dispose of the property, but the existence of non-common children can put a spanner in the works.

The comparative benefits/disadvantages of the tontine/CU need to be fully considered before purchasing any French property. 

 

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