The question hangs in the air as to whether 2025 will see a solution to the worry faced by hundreds of foreign couples over respect of their wills under French inheritance law.
A decision is awaited from the European Commission over multiple complaints it has received about France’s 2021 inheritance law.
France’s Justice Ministry sent The Connexion an explanation of its continued support for the controversial law, which probably mirrors private correspondence it has had with the commission.
Read more: French Justice Ministry: Why we consider 2021 inheritance law to be fair
Why is the law controversial?
This law, originally part of a bill called ‘the law reinforcing respect of the principles of the Republic’, obliges notaires settling the estate of a person who died in France (*see end of article for the precise people affected), or French
situated estate of non-residents, to contact their children and tell them they have the right to claim a ‘compensatory levy' if the estate is to be shared out according to a non-French inheritance law and this does not include obligatory shares for children, as French law does.
This has caused stress for many foreigners in France who used rights from a 2012 EU regulation to choose in a will the law of their nationality to cover their whole estate (eg. English, Dutch or US laws, which offer flexibility on how property is bequeathed).
Read more: French inheritance law: ‘We are being forced to sell our home and leave the country’
It could also apply to non-residents’ French holiday homes, including where there is no choice in a will, in which case the regulation says the law of the owner’s place of residency applies.
Read more: French forced heirship law: is ‘community’ marriage regime the solution?
Multiple complaints to the commission were acknowledged on February 15, 2023, and on February 29, 2024 it acknowledged that an exchange of letters had taken place with France in late 2023/early 2024.
Ronnie Bennett, who is among the complainants to the commission, launched a campaign in July 2024 via our pages to press for a quick decision and highlight the issue's importance to the EU officials. He is now leading this with Trish Miller, who was the first person to make an offiical complaint to the commission, in December 2022.
In recent letters (and now also in a new public statement on its website) the commission told the campaigners it is having “ongoing” exchanges with France. It told them it “expects to be able to provide information on the case in the coming months”.
It also said the French law “raises complex policy and legal questions and may be open to different interpretations – this is not therefore a case of a clear-cut infringement”.
A final decision on infringement proceedings would have to be taken by the 27 EU commissioners, it said, and even if EU law has not been complied with, it has discretion as to whether or not to launch infringement proceedings.
The latter involves a demand for a state to rectify a breach and can lead to EU court action and fines if not complied with.
The commission said affected people could also take action in French courts, which must put EU law above national law.
French reasoning behind law
Papers from 2020-2021 show the Jean Castex government’s aim in the law was to fight sectarianism, identity politics and ‘radical Islam’.
With the inheritance rule, it said it wanted to “put an end on our territory to the application of foreign inheritance laws that harm women”.
An ‘impact study’ at the time gave the example of daughters potentially receiving less in the case of Islamic laws.
In an email to The Connexion the Justice Ministry said the law does not “set aside” the choice of a foreign law, but allows for a “correction of its effects”.
It said it aimed to “limit possible discriminations the testator could make between children, due to their sex, orientation, religion, parentage...”.
This falls under article 35 of the EU inheritance regulation, which says a choice of law can be refused if it is incompatible with a country’s ‘public policy’ (fundamental values), it added.
Read more: Make sense of French inheritance tax
Political debate over rule change
When the bill was debated in parliament, the Senate rejected it, saying its concerns had not been listened to by MPs, including objections to the rule.
Its laws commission said this was not needed to protect women, as article 35 would already allow a French court or notaire to set aside a foreign law in favour of French law if blatant sex discrimination was shown.
It added this could already be done where an estate was due to be shared out under Islamic principles in force in countries such as Morocco or Algeria, which state that a son should get twice as much as a daughter.
Instead, senators said, the law was most certain to affect estates under ‘Anglo-Saxon’ laws, “such as the US, UK, Canada or Australia, which do not seem to traditionally practise discrimination against women”.
In view of the fact that some 300 readers have joined the campaign, and some report putting homes on the market to leave France, the Senate’s predictions were accurate.
Contact details for politicians for your area - so you can write to them about the matter if you wish to - can be found here for Senators and here for MPs (note that if writing, this should be in French).
The vast majority of affected readers wanted to protect a surviving spouse, due to the presence of children from previous marriages.
Should be decided on a 'case-by-cases' basis
Franco-British honorary avocat Gerard Barron said, in his view, the government’s argument is “obfuscation” – it had effectively recognised the pre-eminence of EU law but had “found a way to render it ineffective”.
He thinks it should be left to the notaire or a French court to decide, case by case, if a will is discriminatory, as opposed to the government creating a “blanket rule”.
“A particular country’s choice to allow its subjects testamentary freedom is not in itself discriminatory, nor is a testator’s decision to exclude some or all of their children, unless the motive is shown to be so (race, sex etc), which can hardly be the case where the testator excludes all his children in favour of his spouse.”
However, he said a court case (starting in a French tribunal judiciaire) would have to be between identified parties, eg. a person whose deceased spouse’s child has made a claim on the estate, contrary to his or her wishes in a will could sue the step-child.
"This would be a standard succession case in the civil courts (not the administrative tribunal), the result of which after appeal might end up in the European Court of Justice, if the [top French appeal court] the Cour de Cassation were to uphold the 2021 law and thus to 'demote' the EU Regulation in the normal hierarchy of legal precedence.
"As it would be an individual case, there is no question of a group action (which in any case is not available in French law for such purposes)."
It its latest public statement, the Commision also confirmed that members of the public cannot apply directly to an EU court, it is rather for national courts, if appropriate, to decide "whether it should ask the Court of Justice of the EU to clarify whether a national measure is compatible with EU succession law".
Notaire François Trémosa, who was consulted during the development of the EU regulation, said in his view the ministry’s arguments for its ‘compensatory levy’ were “not coherent”.
“It is not surprising the ministry defends the law it fought for. It nevertheless does not stand,” he said.
Read more: French inheritance and foreign law wills: calls for change grow
The Connexion publishes a guide to Inheritance Law and Wills in France, priced €14.50.
* Who is affected by the 2021 law?
France's 2021 law on a 'compensatory levy' for children applies if the deceased, or at least one of their children, was an EU resident or an EU citizen.
The levy can be taken off French-situated estate up to the value of the traditional French law reserved portion. This is half for a single child, two-thirds for two, three-quarters for three or more.
If the deceased was a French resident, the amount of the levy is worked out based on the worldwide estate’s value, but it can only be taken off property (real estate or bank accounts etc) situated in France.
