French inheritance: what is known about US-law wills and exemption from heirs' levy?

Several readers have asked about the implications for Americans with regard to the recent French government clarifications of the 2021 French inheritance law on heirs’ rights.

The clarifications were made to the European Commission and state clearly that because the law of England and Wales is considered protective of children, France’s 2021 law does not apply if this law is set to govern the share-out of a deceased person’s estate.

This means a testator, who elects English inheritance law for their estate, is free to leave to whom they wish.

They do not have to take into account France’s rules which oblige parents to leave set portions to their children and notaires handling the estate on death to not need to contact any children who have not been bequeathed portions according to French law.

However, the government did not specifically refer to US law in its comments published in the commission’s ‘pre-closure’ letter.

This may be addressed when it publishes further clarifications in an official bulletin intended for notaires and other regulated professions. The justice ministry told us this was expected at the end of June.

What is the 2021 law?

The 2021 law may come into play where a foreign inheritance law is set to govern the distribution of the estate of a foreign or dual-national person who dies living in France and where the person had chosen the law of their nationality in their will, using EU rules.

The law can also affect French-situated estates of some people who die living abroad if they have EU citizenship or if one of their children is an EU citizen or lives in the EU.

The 2021 law, now inscribed at article 913 paragraph 3 of the Code civil, says it takes effect where a foreign law will apply and where the testator or at least one of their children was an EU resident or citizen, and where the foreign law is not protective of children.

If these conditions exist, and the children were not left a substantial inheritance, the notaire dealing with the estate (or French estate) should notify the testator’s children of the right to claim a ‘compensatory levy’ from the French-situated estate, up to the level of the rights they would have had under French inheritance law.

Many foreign people – the majority of whom wish to leave their estate fully to their partner and were informed they could do this by opting for a 2012 EU mechanism to do so – have complained about the French law. 

The French government has now reassured the commission that its 2021 law will have limited effect because it only applies if the foreign law has absolutely no mechanisms that protect children. It clarified that the foreign law does not have to have set heirs’ portions similar to those provided by French law.

Thus, family provisions found in ‘Anglo-Saxon’ law are sufficient, the authorities confirmed, citing English law in particular, as sources previously told The Connexion may be the case. 

So, where does this leave US law?

While many English-speaking countries have rules comparable to ‘family provisions’ – allowing disinherited children to apply to a court for part of the estate under certain conditions – this is not generally the case for US laws.

In the US, inheritance law is set at state rather than federal level, so the recent French declarations are likely to see lawyers for Americans in France (or with property in France subject to the 2021 law), looking for anything protective of children.

Jérôme Poltorak from Toulouse, an English-speaking French notaire with an interest in international matters, passed on the following research notes to us.

“The US is a federal state comprising several territorial units, each with its own legal system; it is therefore impossible to provide an exhaustive overview of all the legislation in force.

“That said, we would like to remind you, for the sake of completeness, that only the state of Louisiana appears to have a réserve héréditaire equivalent to that under French law (it is directly inspired by it: see Article 1495 of the Louisiana Civil Code), understood as a fixed share of the estate to which all children are entitled, regardless of their financial need.

“According to our research, and subject to our correct understanding of US law, there does not appear to be any general mechanism that is entirely analogous to the ‘family provisions’ under English law, enabling a child of the deceased to claim, through the courts, financial support drawn from the estate based on their state of need or dependence on the deceased.

“However, it appears that certain jurisdictions have a form of support mechanism enabling the deceased’s relatives to receive, on a temporary basis (solely during the administration of the estate), a ‘family allowance’ via legal proceedings which, in principle, may be brought by any person with an interest in the matter to meet their immediate needs while the estate is being settled.

“For example, Section 732.403 of the Florida Statutes provides for the payment of a sum enabling the surviving spouse and lineal heirs (minors or dependent children) for whom the deceased was responsible to receive a form of ‘family allowance’ drawn from the estate to ensure their maintenance for the duration of the administration of the estate provided that it does not exceed the sum of $18,000.

“A similar ‘family allowance’ also appears to exist in the State of Arizona. This would also appear to be the case in the states of California, Nebraska and Texas.

“As we are not specialists in US law, it is essential – where applicable – to consult a legal professional whose jurisdiction the law would actually apply to.”

The Connexion notes that as yet it is not possible to say whether the ‘family allowance’ rules will be considered sufficient, as there are possible arguments for and against.

On the one hand, their existence could be used to argue that the laws in question contain something protective of children; on the other it could be said that their effect is more limited than that of the English family provisions, the main example provided so far by the French authorities.

In the absence of further clarifications, then, notaires will have to decide case by case, if possible in consultation with lawyers from the relevant state.