Further to the adoption of the bill to strengthen respect for the principles of the Republic and the fight against separatism, French notaries have seen the resurgence of a principle of international inheritance law that they thought was a thing of the past: the right to the reserved portion of an estate.
The aim of the bill was to combat gender discrimination, and more specifically the rule provided for by Sharia law, which gives daughters only half the sons’ share of an inheritance. The poorly drafted text not only fails in its objective, but has also created legal insecurity and unpredictability which the European regulation on successions had significantly reduced.
Under the new version of Article 913 of the French Civil Code, which applies to successions opened since 1 November 2021 (including if gifts were granted by the deceased prior to that date), a right to a compensatory levy aimed at re-establishing the heirs’ rights to a reserved portion may be exercised over assets located in France, subject to two cumulative conditions:
- The deceased or one of his/her children usually resides in, or is a national of a country of the European Union;
- The foreign law applicable to the succession does not allow for any forced heirship mechanism protecting the children.
- A Muslim Moroccan returns to Morocco after living in France. He has two children, a son and a daughter, both Muslims. The father dies in Morocco. His succession is governed by Moroccan law, in application of French and Moroccan PIL rules. Moroccan law has taken up the rules of classical Islamic law, which excludes non-Muslims from the inheritance of a Muslim and grants daughters only half of a son’s share. The Moroccan system therefore appears to be a forced heirship system, since it provides for the succession of an estate to the children (the freedom of testation remains very marginal). Article 913 will therefore not allow the daughter to claim a right on property located in France, her additional rights in her father’s estate being managed in Morocco. Conversely, as in the past, she could challenge it on the basis of the most traditional international public policy.
- An American who has lived in the United States all his life has two children. He has acquired a second home in France. One of the children is resident in the United States, the other has settled in Sweden. Since the father’s succession is regulated by American law, the child residing in Sweden, or even the one residing in the United States, may invoke Article 913 in order to be granted a compensatory share of the French property in the US succession.
Consequently, it is mainly successions pertaining to the Anglo-Saxon world that will come within the scope of this text, even though the French Court of Cassation, in two recent rulings, has refused to consider that foreign laws which do not provide for forced heirship rules are contrary to French international public policy, (Cass. 1st Civ. Div. no. 16-13.151 of 27 Sept. 2017, and Cass. 1st Civ. Div. no. 16-17.198 of 27 Sept. 2017), as long as there is a mechanism to protect the interests of the children.
In conclusion, a poorly drafted, anachronistic text, creating legal insecurity and unpredictability, and which, moreover, fails to achieve its objective (gender inequality in succession), which can already be challenged as being contrary to international public policy.
It cannot be ruled out, however, that, at the outcome of a priority issue of constitutionality, Article 913 of the Civil Code may be deemed contrary to the French Constitution, or that the text may be challenged before the European Court of Justice on account of the insecurity it creates without it being justified by sufficient interest.
In the meantime, the anachronistic return of the right to the reserved portion of an estate requires French notaries to reassess their estate planning strategies set up in the past when the designated law did not recognise the reserved portion.
Authors: Pascal Julien Saint-Amand, Eugénie Guichot, Paris