A long awaited update on Art.913 of the French Civil Code and the application of English law as the law of succession

The European Commission has issued an update in response to the large number of complaints received in relation to the introduction of a provision within the French Code Civil (the last paragraph of Art. 913). This creates a right for the deceased’s children to claim financial compensation under certain conditions and where the testator had chosen the law of their nationality as the law governing their entire succession in order to swerve the application of the French forced heirship rules. 

This new paragraph, which came in force in 2021, was widely regarded as a breach of EU law and of the EU Succession Regulation No 650/2012 on cross-border successions. 

The Commission thus, asked the French authorities to adopt measures aimed at eliminating the legal uncertainty created by the wording of this provision and has proposed alternative measures to that end. 

The Commission has now published the explanations provided by the French authorities as regards the objective and intended application of the third paragraph of Article 913 of the French Civil Code which are as follows:

' (…) the mechanism of the reserved portion as provided for in French law is only intended to apply if the foreign law normally applicable to the settlement of the succession "does not allow any reserved portion mechanism to protect the children." 

"((…) the French legislator has chosen not to use the expression 'hereditary reserve', but to refer more broadly to the 'compulsory mechanism for the protection of children'. Thus, the French legislator intended precisely to target mechanisms different from the French reserved share, such as the Family Provisions of Anglo-Saxon law, and to limit the right of withdrawal to cases where foreign law does not allow any mechanism for the protection of children." 

«(...) [T]he Family Provisions provided for in Anglo-Saxon law are a "functional equivalent" of the reserved portion. Thus, if English law is applicable to the settlement of the estate, the court should not apply the right of deduction since there is a "compulsory mechanism for the protection of children" in English law, namely the Family Provisions." 

It follows that France accepts that Anglo-Welsh law provides similar protection mechanisms to the children, and the Commission considers therefore that the legal uncertainty created by the wording of the third paragraph of Article 913 of the French Civil Code in the light of Regulation (EU) No 650/2012 on succession has been resolved. 

This is a somewhat surprising move since the category of individuals who can bring a claim under the 1975 Act is much wider than the children of the deceased; and the basis of the claim also differs. Of note, the 1975 Act does not apply where the deceased is not UK-'domiciled' and it will be interesting to see how this is interpreted in practice, in particular to UK nationals who established their permanent residence in France or elsewhere and who could be regarded as having broken ties with their domicile of origin. We will continue to watch this space with interest and report on any significant developments. 

At Stone King, we have expertise across many aspects of French law relating to inheritance, estate planning, Wills, and other Franco-English matters. If you would like to discuss your specific circumstances, please get in touch with our Cross-Border team today.

You can read the update in full here, but please note that it is written in French.