FAQ - French Inheritance Law

[Quillan]

Many thanks to Debra who found this information on the official Notaires website http://www.notaires.fr/notaires/notaires.nsf/V_TC_PUB/GBACT )

The new rights of the surviving spouse The Law of 3rd December 2001 finally gives the surviving spouse a place in inheritance law that is more in line with French aspirations. He/she is the sole heir taking precedence over grandparents, brothers and sisters or more distant relatives. In competition with children, his/her rights have been significantly increased. The poor relation of French inheritance law: until recently the surviving spouse had only a reduced legal title to succeed his/her husband/wife. Bloodline has always taken precedence over the marriage bond but this principle has now been significantly attenuated by the Law of 3rd December 2001 on the rights of the surviving spouse and children born from an adulterous relationship. It modernises various provisions of inheritance law. This law gives the surviving spouse a genuine boost. His/her inheritance title is facilitated and because of the accommodation right that the legislator gives him/her for the future, his/her lifestyle is preserved. It will come into force on 1st July 2002 with the exception however of certain provisions and in particular the granting to the surviving spouse of temporary habitation rights in the home and the right to use the furniture in it. The place of the spouse in the estate From now on, in the absence of last will and testament provisions or gifts between spouses, the rights of the surviving spouse are significantly increased regardless of the other heirs. Common children and descendants If the deceased person only leaves children or descendants of the marriage, the surviving spouse can opt for the usufruct of all the existing estate or ownership of a quarter of the estate. The option facility available to the surviving spouse is personal to him/her and not transferable. The law does not set any time limit for exercising this option. If the surviving spouse dies without having made a choice, he/she is then deemed to have opted for the whole estate in usufruct. The same holds true if, when invited in writing to exercise his/her option by any heir, the surviving spouse does not make a choice in writing within three months of being requested to do so. Non-common children and descendants The deceased person may leave children not stemming from the marriage, for example a child from a previous marriage, an illegitimate child, or a child adopted solely by the deceased. The surviving spouse receives ownership of a quarter of the estate calculated in accordance with new Article 758-5 of the Civil Code. He/she no longer has the option of selecting total usufruct, which may have disadvantages where the spouse is relatively young in relation to the children of a previous marriage. The father and mother Where the deceased person leaves his/her father and mother, each of them receives a quarter of the estate while the spouse receives half. If the deceased person leaves only one parent, he/she receives a quarter of the estate and the spouse receives the other three quarters. The presence of brothers or sisters of the deceased person does not change the rights of the spouse. By notarised will A married person may deprive his/her spouse of the right to lifelong accommodation by a will executed by two notaries or one notary in the presence of two witnesses. The purpose of this restrictive provision is to prevent a married person from taking such a serious decision lightly. Preferential collateral relatives This term is used to describe brothers and sisters and their descendants, in other words the nephews and nieces of the deceased person. From now on, the surviving spouse can cut them out of the succession. Thus, where the deceased person leaves no children or parents but leaves his/her spouse and brothers and sisters, the latter are excluded from the succession. Except for a right of reversion of half The legislator, however, wished to adjust this principle by allowing certain property received into the family by blood to be retained. From now on, full ownership of half of any property that the deceased had received from his/her father and mother by inheritance or gift and which appears in kind in his/her estate reverts to the brothers and sisters of the deceased or their descendants (these brothers and sisters must have come from the same deceased parent who originated the transfer) and the other half goes to the surviving spouse. Grandparents, uncles and cousins The spouse also excludes from the succession heirs of subsequent orders who are ordinary relatives in the ascending line, in other words grandparents, great grandparents… and ordinary collateral relatives : uncles and aunts, cousins… In these cases the spouse will inherit ownership of the whole estate. An allowance for grandparents These new rights granted by legislation to the surviving spouse are not without another side. The latter could be liable to pay support to any grandparents removed from the succession. This support will be charged against the estate and paid in the form of a pension. Points to be remembered Where the deceased leaves no relatives in the ascending or descending line, the spouse becomes the heir who cannot be disinherited in respect of a quarter of the estate. The right to temporary accommodation is immediately applicable. To enjoy a lifelong right to accommodation, the surviving spouse must express this desire within one year of the death. Only a non-divorced spouse against whom there is no separation judgement with the force of res judicata is an heir. Temporary accommodation right Regardless of the marriage scheme, the surviving spouse enjoys a free right of undisturbed possession of his/her home and the furniture in it. This only relates to the home actually occupied by the spouse as the principal residence on the date of the death. From 4th December In respect of any succession opened with effect from the publication of the new law in the official journal, i.e. 4th December 2001, the surviving spouse enjoys free right of undisturbed possession of his/her home and the furniture in it for one year. This right is his/hers regardless of the heirs or legatees. The benefit of this right is granted by law and order and cannot be removed by a contrary wish of the deceased. Procedures This temporary right can be exercised regardless of whether the married couple are the owners or tenants of their principal residence. If they were joint owners or if the property came from the estate of the pre-deceased spouse, this right takes the form of free undisturbed possession of the home and the furniture in it. If they are tenants, the rent will be reimbursed by the estate to the surviving spouse as and when it is paid. Lifelong entitlement to accommodation In respect of any succession opened, this time with effect from 1st July 2002, the spouse may enjoy a free right to live in the home and use the furniture in it until his/her own death. If he/she is a tenant, the surviving spouse shall only enjoy the right to use the furniture. The surviving spouse must express the desire to enjoy these rights of accommodation and use within one year of the death. Charge against ownership rights received If the spouse requests it, the value of this lifelong accommodation right and right to use the furniture is deducted from the other rights received from the estate, particularly in the presence of children, from the owned quarter reverting to him/her. If the value of these rights is less than that of his/her inheritance rights the spouse may take the rest from the existing assets. If the opposite is true, he/she shall not be bound to indemnify the estate. Possibility of renting Finally, if the home encumbered by the accommodation right is no longer suited to the needs of the spouse, the latter may rent it for any use other than commercial or agricultural in order to generate the necessary resources for his/her new accommodation. With the agreement of everyone The lifelong accommodation right may even be converted to a life annuity or a capital sum but only with the agreement of the spouse and the heirs. The special inheritance rights of the spouse One of the major contributions of this new law is that, in certain cases, it gives the surviving spouse the status of an heir who cannot be totally disinherited. If there are no heirs in ascending or descending line, he/she enjoys an inheritance right representing one quarter of the estate. In order to secure this status, he/she must not be involved in divorce or separation proceedings. Thus, if there are no heirs in ascending or descending line, the pre-deceased spouse cannot freely dispose of more than three quarters of his/her assets to persons other than his/her spouse. Example of special inheritance rights The deceased leaves his/her spouse and one sister, general devisee and legatee. In the absence of relations in the ascending or descending line, the spouse is the heir who cannot be totally disinherited. He/she may take action to reduce the general legacy given to his/her sisterin- law. The latter can therefore only lay claim to three quarters of the estate while the spouse will receive one quarter by virtue of his/her status as an heir who cannot be totally disinherited. No special inheritance rights The deceased leaves his/her spouse, maternal grandfather and sister, general devisee and legatee. If there is a relation in the ascending line, the surviving spouse is not considered to be a rightful heir. He/she therefore cannot take action to reduce the legacy. The general devisee and legatee receives the whole of the estate except however for the temporary accommodation right granted to the surviving spouse. A few other provisions As under the old law, the estate of the pre-deceased spouse owes an allowance to the surviving spouse who is in need. The preferential allocation enabling the surviving spouse to secure the ownership or lease of the accommodation which is his/her actual home, within the framework of the sharing out of the estate, is now enshrined in law. And furthermore, it is extended to the furniture in it. The usufruct received by the surviving spouse legally, by will, or by gift between husband and wife, can be converted into a life annuity at the request of the heirs or the spouse. This conversion facility is a matter of law and order. However, with regard to the home and furniture, the conversion cannot be ordered against the will of the spouse. This conversion facility is a matter of law and order and cannot be ordered against the will of the spouse in relation to the usufruct of the home he/she occupies as a principal home and the furniture in it. Room for freedom The new law improves the situation of the spouse but leaves significant room to accommodate the wishes of the married couple. They are still able to improve the situation of the surviving spouse and tailor their provisions to their particular situation.