How to prepare for dying in France

November 19, 2007

Do you know what would happen to you or your spouse’s assets if you should ‘disappear’ in France? Many expats don’t as French succession laws are markedly different than those in most English-speaking countries. Kathryn Valdal Fourie provides a primer, including an overview of recent legislation.

Wondering what happens if you die in France is not often uppermost on the minds of expats busy building a new life here.

But French inheritance laws are markedly different to the legal norm in most English-speaking countries; it is safe to say that many expats are unaware of the laws that will apply if they ‘disappear’, as the French say.

Some 80 percent of people die without a valid will. But even if you’ve drawn up a perfectly good will in another country, French inheritance laws will apply in the event of your death and it could be found invalid by French courts.

Here’s why you should take the time to think about what happens…after.

Modernising French inheritance laws

The bulk of the inheritance code dates to 1804 in France; although it was significantly updated in 2002, the French parliament recognised the need to continue modernising the law by adopting yet another succession law on June 14 of this year. The new law will apply as of January 1.

The most significant clauses of the new law include:

  • the law is much more flexible in terms of dictating who can be included as primary heirs. In the past, the law strictly dictated that all children of the deceased would inherit first and equally. Under the new law, grandparents will be able, for example, to bequeath directly to their grandchildren (with their childrens’ consent); the new law also applies to familles recomposées so that the children of a first marriage can cede part of their rights to the spouse or children of a subsequent marriage. Likewise, a sibling from the same family can renounce part of their inheritance in favour of another relative.
  • the deceased can name an executor to posthumously manage all or part of the estate.
  • the law now offers more recognition of couples pacsées.
  • the heirs of a property no longer need to agree unanimously to administer the estate, for example, a decision to rent out an inherited property; the sale of an inherited property still requires unanimous agreement among the heirs.
  • a marriage contract, régime de marriage, can be changed without court approval with the consent of adult children (except in the presence of minor children). Such changes are sometimes made to change a spouse’s status in terms of legal claim to the estate.
  • the amount of time allowed to make a claim to an estate has been shortened from 30 years to 10 years.

The new law is intended to better reflect the realities of modern family life.

Contrary to laws in most English-speaking countries — which allow you to leave your estate to anyone you choose and, in the absence of a will, favour the spouse over children—the original French inheritance laws favour the ‘direct line of descent’, that is, the children, grandchildren and parents.

The intent is to protect the family, for example, to prevent an unscrupulous outsider from persuading or coercing an elderly person to disinherit their family.
But in fact, prior to July 2002, the surviving spouse had almost no rights at all in France. If a spouse died without a will, the surviving spouse would have received nothing; even with a will in place, the surviving spouse would only have been able to receive a share equal to that of the surviving children.

Some foreigners who have assumed that French inheritance laws mimic those in other countries could be caught unawares in the worst possible circumstances.

Take the example of Mary Lalevée, who learnt about the French inheritance laws following a potentially fatal accident in 1999. She and her husband subsequently decided to write their wills and, tragically, her husband died suddenly a year later at 46.

Consequently, the estate was divided equally between Mary and her two children, then aged 11 and 13. If they hadn’t drafted their wills, she would have been left with nothing.

The laws have since changed significantly but the lesson remains: French laws are probably still quite different than those in your country of origin and the only way to protect your assets here and abroad is to consult a notaire and, probably, to draft a will.

The long reach of the law

If you are a resident in France at the time of your death, all your assets worldwide are covered by the French inheritance law, except real estate owned elsewhere, explains Jean Taquet, legal consultant and author of ‘The Insider Guide to Living in France’, who explains the importance of drawing up a will in France.

Foreign real estate is governed by the inheritance laws of that particular country. “If you have real estate in Spain for example, it is also necessary to have a will drawn in Spain,” explains Taquet.

If you are not a resident in France but own property here, however, that property is subject to French inheritance law and must be covered by a French will.

What happens if you do not have a will?

In France, you cannot leave your estate to anyone you want if this person or entity falls outside of the French law. “It is also impossible to disinherit your children, your parents and more recently your spouse,” says Taquet.

Under current French law— and this will be largely unchanged by the new legislation—Taquet explains that an estate not covered by a will is automatically divided equally amount amongst all the people on the same ‘level’ of succession. The levels are (in order):

1. The children
2. The parents
3. The surviving spouse
4. The brothers and sisters
5. The grandparents and above
6. The cousins, uncles and aunts and everyone coming from the same great-grandparents.

The surviving spouse, however, receives more favourable treatment than this suggests. For example, he or she has the right to stay in the family home for a year free of charge. Still, even if a property was bought in both spouses’ names, the children, not the spouse, have prior claim over the deceased’s half of the house.

There are too many possible scenarios to cover here, but Taquet provides one example:

If the other heirs are the children the couple had in common, then “the surviving spouse has the choice between a) complete claim to a share of the total estate divided equally among all surviving children of the deceased (including those from a previous marriage) b) the use, rental and enjoyment of everything in the estate (usufruct).

The second option — a difficult concept for Anglophones says Taquet— doesn’t mean the surviving spouse can touch any liquid assets belonging to the children. But he or she could, for example, stay on in the family house (‘using it’) until their death when the children would inherit everything outright. A judge might intervene if this means the adult children wouldn’t get their inheritance for too long a time.

If there are no surviving children, but both parents of the deceased are alive, the surviving spouse gets full ownership of half the estate.

If the children are minors, the surviving spouse must apply to a court to sell any assets or administer the childrens’ share.

This is largely a formality but you will have to communicate with a judge every year to demonstrate you haven’t absconded with the children’s inheritance. Plus, a judge will normally not allow the guardian of the children to use their inheritance to pay for their care. Mary Lalevée, for example, was forced to borrow money to cover her family’s finances while her childrens’ inheritance was invested until they became adults.

All of this is partly why the French are very concerned with carrying life insurance, or assurance décès, as these payouts are not included in an estate, provided the beneficiary is not the deceased. You can also take out multiple policies for various family members, your children, your spouse, a friend or lover.

What difference does a will make?

While French law still tries to prohibit disinheriting certain members of your family, a will can still make a huge difference, especially under the new law.

  • A will would allow you to leave a ‘donation’, that is, a specific asset, animal or a sum of money, to a spouse, partner, child, friend or association.
  • A will would allow your spouse to live in the family home until his/her death.
  • A will could mean one or more of your heirs receive their inheritance over time instead of in a bulk sum.
  • A will specifies the guardians of minor children, including guardians living outside France. Without a will, the judge will automatically appoint guardianship to your surviving parents but a will means you can select the guardian of your choice and that the children would be placed under their care more easily and quickly.
  • A will allows you to detail funeral or cremation arrangements.

Writing a will

The two most commonly used wills in France are the testament olographe, a handwritten will, and the testament authentique, written by a notary.

For the first, you will be asked to write out the will by hand based on the legal advice of your notary. The notaire will then check the document and have it registered and kept at an official location in France.

For a testament authentique, you dictate your wishes orally to a notaire, who then types the document and reads it back to you.

The second is more difficult to contest.

You can also write your will in English, or another language, if you wish under an ‘international will’ introduced in 1994 for foreigners and French citizens living abroad.

Kathryn Valdal Fourie is a South African freelance journalist located in Paris. She writes for publications in Europe, the US and South Africa on topics ranging from finance and technology to parenting and living abroad.

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