Worried about a friend

[bixy]

I know the advice will be "see a notaire" but as this concerns a friend it is not my place to do that. However, I am worried that this friend is seriously misinformed. She is the second wife of someone who has children from a previous marriage. She has no children. Their house is owned en tontine so if her husband predeceases her, which is likely given their age difference, she will be able to continue to live in the house. What concerns me is what will happen when the house is sold. She believes that the receipts for the house will be entirely hers to do with as she wishes. I'm not so sure. I rather think that at that time the French inheritance laws will come into play and the children will be entitled to a share. Am I right?

Patrick

[woolybanana]

"Au survivant les biens" only gives limited rights I think. One is to pay for the health and age care of the surviving spouse but I dont think they have full rights to dispose of assets. But, better get your friend to check it out with the notaire who set up the contract if possible.

[AnOther]

Changing marriage regime can be a complicated, drawn out, and potentially expensive business.

A taster

My head hurts already and I would say that to sort this out to ensure the outcome your friend wants or needs you need a specialised lawyer not just a Notaire.

Best of luck [:'(]

[parsnips]

[quote user="bixy"]I know the advice will be "see a notaire" but as this concerns a friend it is not my place to do that. However, I am worried that this friend is seriously misinformed. She is the second wife of someone who has children from a previous marriage. She has no children. Their house is owned en tontine so if her husband predeceases her, which is likely given their age difference, she will be able to continue to live in the house. What concerns me is what will happen when the house is sold. She believes that the receipts for the house will be entirely hers to do with as she wishes. I'm not so sure. I rather think that at that time the French inheritance laws will come into play and the children will be entitled to a share. Am I right?

Patrick

[/quote]

    If the husband dies first she will be the owner of the house in full title as if she had always been the sole owner, if she then sells the proceeds will be hers. The children of her husband have no claim on her estate of which the house will form a part. That is the point of the tontine in cases like this.If however there is a big difference between the ages of your friend and her husband, there is a possibility that either the tax authorities or the children could obtain a judgement that the transaction was in fact a "donation indirecte" , but this would presumably happen at the succession, and not the subsequent sale. If there was such an age gap it would be necessary to prove that the couple each contributed their own money to the sale in proportion to their ages ie. the younger spouse  contributing more as they were most likely to end up as the owner.

[Will]

This is a very complicated subject, and the usual advice (in fact advice given in many books) is to adopt the French 'communauté universelle' marriage regime. However under the latest rules this is not always the best answer, and, as Parsnips says, the tontine can still often provide the best, though not necessarily an ideal, solution. The CU marriage regime doesn't suit everybody anyway, as demonstrated by the fact that some French people formally adopt the separation de biens - i.e. the English - system. Everybody's circumstances are different, and you really do need to look at the whole picture for yourselves rather than just copying what somebody else, whose children's circumstances are similar, has done.

Bear in mind that reserved heirs (e.g. one's own, or legally adopted, children) cannot be disinherited under French succession law despite the many ways that non-French seek to try and circumvent the law.

 

[bixy]

Thanks for those replies. I think there's some reassurance for my friend there.

Patrick

[Lollie]

So what happens for a couple married in the UK, living and working in France and have bought a property in joint names with a joint mortgage?  with children and life insurance on the principle earner.

Lollie

[AnOther]

Likely very different to the OP and depends on what Marriage Regime you declared with the Notaire when you bought your house.

[parsnips]

[quote user="Lollie"]

So what happens for a couple married in the UK, living and working in France and have bought a property in joint names with a joint mortgage?  with children and life insurance on the principle earner.

Lollie

[/quote]

    Are the children from their marriage, or from previous relationships?--this makes a huge difference, so cannot answer without knowing.

[nectarine]

slightly controversial point here, but who would ever know that the husband had children from his previous marriage?  In my own circumstances there is an age difference, and my husband is estranged from his grown  up children who don't know where he lives or even bother to have anything to do with him.    We own en tontine and it's probable that Mr. Nectarine would die first ..... so why should I ever declare that he had children from his previous marriage?  Who would bother to trace them?

Not everyone will agree with the ethics of this posting but let's pursue this point ... if no-one knows that there are children from a previous marriage, and they never bothered to come forward, then surely the succession of all assets would just pass to the second wife without any problem.  How would the notaire ever know differently?

 

[AnOther]

I'm sure we take the point but at the same time I don't quite see the French authorities taking the simple word of a second spouse or anyone acting on behalf of a deceased that there are no children involved. Inquiries would surely be made otherwise what is there to stop anybody claiming this to completely sidestep French inheritance issues ?

[Pickles]

[quote user="nectarine"]slightly controversial point here, but who would ever know that the husband had children from his previous marriage?  In my own circumstances there is an age difference, and my husband is estranged from his grown  up children who don't know where he lives or even bother to have anything to do with him.    We own en tontine and it's probable that Mr. Nectarine would die first ..... so why should I ever declare that he had children from his previous marriage?  Who would bother to trace them?

Not everyone will agree with the ethics of this posting but let's pursue this point ... if no-one knows that there are children from a previous marriage, and they never bothered to come forward, then surely the succession of all assets would just pass to the second wife without any problem.  How would the notaire ever know differently?[/quote]

The house would pass directly to the survivor as it has been purchased quite legally en tontine, unless there is such an age difference that the authorities could construe that there had in fact been a donation. However, the tontine concerns only the house, and not the other assets, which are then covered by the marital regime and succession law. If at the time of death, a false declaration is made which effectively disinherits your husband's children (who as reserved heirs may be entitled to a share of the non-tontine assets, dependent again on the marital regime), then if at some future point this is discovered, I believe that you could be held liable in law. If by this time you are outside the French jurisdiction, then this may not concern you, but otherwise you may have committed offences akin to fraud, which I think would become a criminal case rather than a civil case. I stand to be corrected on this however.

Edited to add:

I believe that there is another issue: that of domicile. Even if you are living outside of the UK, your husband (assuming that he is from the UK!) may still be deemed to have a UK domicile, especially if he has any assets (eg bank accounts) in the UK. The estate may be exempted from UK IHT, but you would still need to file documentation, in which case you would be signing a declaration about which relatives are still alive. This documentation could then lead to a UK probate record that is searchable. At this point I am way out of my depth, I must confess, so could be writing complete rubbish.

Regards

Pickles

[parsnips]

Hi nectarine,

       French law says that where a héritier--in this case, you-- attempts to hide the existance of another héritier--here, the children--and it is discovered, then the guilty party loses the part of the estate due to the others ,and may be ordered to pay damages and interest.  So, on that basis it would seem worth a try, as you can only lose what is not legally yours anyway, plus possible damages.

       It is ,however, the notaires job to seek out all possible héritiers and much would depend on how diligent he/she was. One thing he will want to see is your marriage certificate and if your husband's status is shown as "divorcé", the notaire might search UK birth records in his name.If the children were discovered, you could ,of course, deny all knowledge.

       I write all the above as a purely hypothetical case, and do not encourage you to undertake what would be an illegal course of action.

[5-element]

Notaires can be extraordinarily diligent in tracking down héritiers.  I and other distant half-cousins, about a dozen of us, dispersed all over the world, were tracked down when a half-uncle of mine (whom I didn't even know existed) died in Morocco. As it happened, his common-law wife, who survived him was kicked out of their home, because it was also discovered he had been married previously and never bothered to divorce! Nothing about the inheritance could be sorted out until all the distant relatives like myself had renounced the inheritance (which was tiny anyway). It took several years to sort out, and meanwhile, the unfortunate common-law wife died, without ever being ever to get back to what had been her home. This was all according to French law - very messy and protracted.

To this day, I have no idea how the notaire ever found me.

[AnOther]

[quote user="5-element"]To this day, I have no idea how the notaire ever found me.[/quote]Perhaps he or she Googled 5 Element [:D]

[nectarine]

Point taken, and thanks for that.  It's clear that I would be in deep doo-doo if I didn't disclose my husband's earlier children, particularly as the notaires are able to trace distant relatives (5-element's point, particularly).  Still, it was a nice thought ...... 

[parsnips]

[quote user="nectarine"]Point taken, and thanks for that.  It's clear that I would be in deep doo-doo if I didn't disclose my husband's earlier children, particularly as the notaires are able to trace distant relatives (5-element's point, particularly).  Still, it was a nice thought ...... [/quote]

Hi nectarine,

     With the tontine you should be OK for the house. For cash ,investments, and all other personal assets of your husband , (I assume you have an english marriage)he can safeguard your interests by making a french will leaving part to you in full title(depends on how many children), and everything else to you in QUASI-USUFRUIT , this means that you get full use of all cash etc. and his children get a "creance", a sort of legal IOU which they can present at your succession to reclaim whatever might be left. You need to see an ENGLISH-FLUENT Notaire to explain exactly what you want to achieve, and specify that the Quasi-Usufruit gives you the fullest possible powers.

     You can PM me for more details.

[Lollie]

Just dug out the paperwork and mortgage details,   the notaire notes Mariés sans contrat préalablement à leur union célébrée à angleterre.  , we have a joint mortgage, three children to ourselves OH one older daughter in UK. We live and work here in France. New Years Resolution No;1 need to speak to a notaire,

Does this equate to anything in France?

 

Lollie

[parsnips]

[quote user="Lollie"]

Just dug out the paperwork and mortgage details,   the notaire notes Mariés sans contrat préalablement à leur union célébrée à angleterre.  , we have a joint mortgage, three children to ourselves OH one older daughter in UK. We live and work here in France. New Years Resolution No;1 need to speak to a notaire,

Does this equate to anything in France?

 

Lollie

[/quote]Hi,

   As things stand at the moment your marriage contract is regarded in france as "separation des biens", which means that anything in your sole name is in your estate, and likewise for your husband,--anything owned jointly is regarded as owned 50/50 between your estates.

    If you take no action then should your husband die , you would be entitled to 1/4 of his estate in full ownership and the rest would be equally divided between your 3 children and his  daughter.You would of course still own 1/2 the house and the rest of your estate, and would be able to demand the right to remain in the house.

    The simplest way to avoid most of the problems this would cause ,would be to go to the notaire and ask for a "donation au dernier vivant" (first check that this was not done when you bought the house--it sometimes is ,and people either don't fully understand ,or forget).

    If your husband dies with a "dernier vivant" in place then you can take either 1/4 of his estate in full ownership, plus the rest in life interest, or all his estate in life interest. Your 3 children and his daughter would have the "bare title" to the part in life interest.Again you retain all your estate.

   A "donation au dernier vivant costs a couple of hundred €.

   The only potential difficulty would arise if you wished to sell the house , when all involved must agree to the sale. Much depends on how well you all get on as a family.

   If you were to die first,and no action had been taken ,the situation for your husband would be simpler, as all the children are his, so he would have the same choices, without a "dernier vivant",but it is impossible (legally) to ensure who goes first, so you must plan for the worst case.

   If you wish to ensure that you (or your husband) would have full ownership of everything on the death of the other, this can be done by adopting the french marriage contract of "communauté universelle, avec atribution integrale" which means the surviving spouse takes all, BUT,you have to obtain the prior consent of your husbands daughter that she would not demand her part after the death of her father.As that part would be quite small it might be possible to arrange compensation in the form of a life assurance on your husbandwith her as beneficiary, if she needs encouragement.

 It is essential to discuss this with all concerned and decide what you all want before finding an english-fluent  notaire(even if you are fluent in "everyday" french), and discussing it with him/her;