As a pillar of French inheritance law, the hereditary reserve for descendants (forced heirship) benefits, in international context, from varying degrees of protection through times.
Very recently, the French legislator reaffirmed this protection by reintroducing, in internal law, a compensatory deduction right on property located in France in the event that the foreign law applicable to the succession would ignore the hereditary reserve.
In intern law:
Governed by articles 912 et seq. of the French Civil code, the hereditary reserve is: “the share of property and inheritance rights which the law ensures the free devolution of charges to certain heirs known as reserving, if they are called to the succession and ‘they accept it. “. Quantified by article 913 of the Civil Code, it is of one half of the asset of the deceased if he leaves only one child at his death, of one third of the asset if he leaves two children and a quarter of the asset if he leaves three or more children.
In domestic law, the reserve of descendants benefits from several protective mechanisms.
In an international context:
When an estate is governed by a foreign law that does not know the forced heirship, the right to a minimum devolution for the descendants is now guaranteed. It was more or less guaranteed over time.
Historically, it was the law of July 14th, 1819 which, in its article 2nd, introduced a direct debit right in international successions.
Thus, in the context of the division of a succession between foreign and French heirs, French heirs could withdraw from the property located in France a portion equal to the value of the property located in a foreign country from which they would be excluded, for any reason (according to local laws or customs). Seized of a priority question of constitutionality, the French Constitutional Council, by a decision dated August 5th, 2011, ruled that this article infringed the principle of equality guaranteed by the Constitution. In fact, the right of direct debit at the time was only offered to French heirs. As a result, this right had disappeared from our legal order.
Since the Regulation (EU) n ° 650/2012 of the European Parliament and of the Council of July 4th, 2012, entered into force, the law applicable to the settlement of a succession is, when no profesio juris in favor of national law has been made, the law of the State where the deceased had his habitual residence at the time of his death. Given the universal scope of the Regulation, the law applicable may be the law of a State ignoring the notion of hereditary reserve.
In this hypothesis, the Court of Cassation, by two cases dated September 27, 2017 (n ° 16-13.151, n ° 16-17.198) ruled that: “a foreign law designated by the conflict rule which ignores the hereditary reserve is not in itself contrary to French international public order and can only be ruled out if its concrete application, in the specific case, leads to a situation incompatible with the principles of French law considered essential”. And the Court of Cassation gave the example of the heir who would find himself “in an economic situation of precariousness or need”. The public order exception should therefore not operate against a law in the abstract but against the application made of it in a specific case, which gave rise to uncertainties in terms of assessment. Thus, the Court appreciate public order assessment in concreto. This could create uncertainties from a practical point of view
Today, the law of August 24th, 2021 confirming respect for the principles of the Republic, has reintroduced a compensatory deduction right, as a guarantee of the efficiency of the hereditary reserve under French law.Article 913 of the Civil Code is now completed by a paragraph which provides that: “when the deceased or at least one of his children is, at the time of death, a national of a Member State of the European Union or usually resides there and when the foreign law applicable to the inheritance does not allow any reserving mechanism to protect children, each child or his heirs or successors in title may make a compensatory deduction from the existing assets located in France on the day of death, in a manner to be re-established in the reserving rights granted to them by French law, within the limits of these. “
The compensatory right will come into force on November the 1st, 2021 and will apply to estates opened from that date. Its application will be doubly conditioned. It will suppose to establish a link with the European Union (by the residence of the deceased or of one of his heirs, at the date of death in a Member State or by their nationalities) and its implemented will be limited to the assets located in France at the date of death.
The subjective approach by the Court of Cassation is now disregarded in favor of objective criteria. While this objective approach of the protection of the reserve makes it possible to clarify its invocability, the application of the compensatory right already raises questions for notaries.
These questions concern both the implementation of this right (is it exercised in value? In kind?) And the need to integrate it at the stage of estate planning. Also, the problem of the hierarchy of norms arises, since the European regulation allowed the application of a foreign law which ignores the forced heirship.
The Constitutional Council had to rule on the constitutionality of several articles of the law of August 24, 2021 but they did not concern the compensatory right.
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