Reserved Heirs in French Inheritance Law

We both have children from previous marriages and are worried that due to the 2021 French law the survivor could lose their home. Are there solutions to this?

Many readers will know about the forced heirship provisions under French law. The 2021 French law introduced a right for reserved heirs (e.g. children) to seek compensation where an estate is subject to a foreign law that does not offer such reserved rights (e.g. English law). It applies where the deceased or at least one of their children was an EU national or resident. Whilst the notaire is obliged to inform any children of their right to claim, the action itself is optional.

Only assets of a monetary nature situated in France are available to satisfy a claim. The children have no automatic entitlement to the French home, although it may need to be sold if liquid assets are insufficient.

Many couples choose to avoid the French forced heirship provisions and protect the survivor by electing for English law to apply. However, this does invoke the 2021 French law, which makes the estate vulnerable to challenge. There are some alternative options set out below.

A tontine clause is similar to joint tenancy ownership in the UK, meaning the survivor is treated as having always been the sole owner of the property. It takes precedence over any Wills.

Under French law, it is possible to give the survivor enhanced rights under a Will, with the choice of inheriting the entire French estate as usufruit (similar to a life interest), the entire disposable portion (once the reserved heirs have received their entitlement), or ¼ in full ownership and ¾ as usufruit. Where the survivor inherits an usufruit, their interest cannot be freely disposed on their own death. However, the holders of the bare ownership are unable to force a sale, and are equally responsible for the maintenance of the property.

Another option is the droit viager d’usage et d’habitation, where the survivor retains the right to live in and use the contents of the deceased’s residence if they also used it as a main residence. The survivor must actively claim this right within one year of the death.
By opting for one of the options above, the surviving spouse receives a similar level of protection, without the risk of a claim that might necessitate the sale of their home. It is possible, though, that this law might be successfully challenged through the European courts.