Navigating French Inheritance Law After the Death of a Spouse

Question: I keep receiving letters from my French bank regarding my late husband’s accounts. He died resident in France in 2022 leaving an Australian Will. I’m not sure whether the recent changes to French inheritance law mean that I should wait to deal with his succession or not.

Whilst your husband left an Australian Will, this would be valid in France under an international convention. As your husband died as a resident and asset holder in France, the next step is to determine what law applies to his estate under the EU Succession Regulation 650/2012 (“The Regulation”), which came into force in 2015. The default position is that the law of his habitual residence will apply, i.e. that of France. However, it is possible for this to be displaced either by virtue of an express election in a Will prepared after 2015 or by a deemed election appearing in a Will prepared before 2015.

Under the terms of your husband’s Australian Will, it is possible that Australian law would apply to his estate via either of these mechanisms. We would need to review a copy of the Will to ascertain whether the election was valid and determine what assets it would affect. If Australian law were to apply to some or all his assets, we would suggest that you seek assistance from an Australian lawyer, particularly as a declaration of foreign law would be required by the notaire dealing with his French succession.

You refer to a recent change in French succession law (an amendment to the French Civil Code), which somewhat undermines the Regulation’s ability to harmonise succession law across the EU. Even though it remains possible to make an election of foreign law under the Regulation, where that foreign law applies in France and does not grant any reserved heirship rights to the deceased’s children, they retain the right to seek financial compensation from the estate.

Although the European Commission are in discussions with France, the amendment has not yet been overruled. On this basis, we cannot advise you to neglect the administration of your husband’s French succession, particularly as interest and penalties may apply where any inheritance tax is not settled within the relevant timeframe (the end of the sixth month after the date of death where the deceased dies in France).

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If you have any questions or would like advice on creating a French Will, cross-border estate planning or buying/selling a French property, please get in touch with our specialist French Legal Services team through this website or by calling 0330 404 0768.