International succession planning between the UK and France – what expats might need to know

One of the fundamental principles of succession law in England and Wales is testamentary freedom. Broadly speaking, an individual is free to leave their estate to whomever they choose through their will.

There are, however, limited exceptions. Under the Inheritance (Provision for Family and Dependants) Act 1975, certain individuals, including spouses, children and financial dependants, may be able to bring a claim against an estate if reasonable financial provision has not been made for them. It is a requirement that those individuals are common law domiciled in the UK for a claim to be brought forward.

Unlike many civil law jurisdictions, there is no automatic entitlement for children to inherit a fixed share of a parent’s estate.

France takes a very different approach.

French succession law contains a long-established system known as réserve héréditaire (forced heirship), under which a portion of a deceased person’s estate is reserved for their children. The proportion reserved depends on the number of children surviving the deceased.

As a result, a person cannot always freely disinherit their children under French law in the same way they can under English law.

The EU Succession Regulation (Regulation 650/2012), which came into force on 17 August 2015, allows individuals living in participating EU Member States to elect the law of their nationality to govern their succession.

Although the United Kingdom chose not to participate in the Regulation, UK nationals can still benefit from this choice-of-law mechanism. For example, a British national living in the UK may elect for the law of England and Wales to govern their succession in France.

For many years, this election was viewed as an important planning tool for UK nationals seeking greater flexibility over the succession of their French assets.

On 1 November 2021, France introduced Article 913(3) of the French Civil Code.

This article introduced a compensatory levy intended to safeguard children in specified international succession cases where the rules of forced heirship have not been observed. This may apply, for example, where a testator has elected for UK succession law to govern their estate pursuant to Regulation No. 650/2012.

The provision may become relevant where:

• the deceased or at least one of their children is a national of, or habitually resident in, an EU Member State; and
• the foreign law governing the succession does not provide any mechanism protecting children.

In those circumstances, children may be entitled to seek compensation from assets situated in France up to the value of their French reserved heirship rights.

French Notaires are therefore required to consider whether the provision may apply and to inform heirs of their potential rights.

Following the introduction of Article 913(3), the European Commission received numerous complaints alleging that the provision undermined the right of individuals to choose the law of their nationality under the EU Succession Regulation.

The concern was straightforward: if a British national elected English law to govern their succession, but French forced heirship protections were effectively reintroduced through Article 913(3), was the choice of law being respected?

As Article 913(3) seemed to be incompatible with Regulation No. 650/2012, the Commission sought clarification from the French authorities.

The French authorities explained that Article 913(3) was intended to operate only in limited circumstances. In particular, they stated that the provision was designed to protect children where the foreign law governing the succession provides no protective mechanism whatsoever for children.

The French authorities also referred to the public policy exception contained in Article 35 of the EU Succession Regulation.

Furthermore, they have confirmed that the Inheritance (Provision for Family and Dependants) Act 1975 provides a sufficient protective mechanism for children. Accordingly, where relief is available under the 1975 Act, a French court should not apply the compensatory mechanism provided for by Article 913(3).

Following these explanations, the European Commission concluded that the concerns raised by the complaints had been sufficiently addressed and closed its investigation.

The Commission’s decision does not change French law, nor does it bind French courts. However, it does provide an important indication as to how the French government intends Article 913(3) to operate.

Consider the following example:

An English national, domiciled in the UK, who is habitually resident in France owns a French holiday home and elects for the law of England and Wales to govern their succession. Their will leaves everything to their spouse and nothing to their children. Following their death, the French Notaire may need to consider whether the protections available under English law, including the Inheritance (Provision for Family and Dependants) Act 1975, amount to a sufficient protective mechanism for the children. If not, Article 913(3) may potentially be relevant in relation to the French property.

A key point is that there is currently no definitive French court authority determining whether the protections available under English law are sufficient for these purposes.

Furthermore, the Inheritance (Provision for Family and Dependants) Act 1975 applies only to the estate of an individual who dies domiciled in England and Wales. Accordingly, the position remains uncertain where a UK national has validly elected for the law of England and Wales to govern their succession but is not domiciled in England and Wales at the date of death.

As a result, some uncertainty remains.

That said, the French government’s clarification is reassuring and provides considerably more comfort than existed immediately after Article 913(3) was introduced in 2021. Further guidance is expected when the French Government publishes its position on this issue in a public letter issued by the Direction des affaires civiles et du sceau (Directorate of Civil Affairs and the Seal), which is circulated to French notaries and other regulated professionals.

For UK nationals with French assets, careful cross-border planning remains essential.

Practical steps may include:

• ensuring that wills contain an appropriate and express choice of succession law where suitable;
• reviewing succession plans where children are being excluded or treated unequally;
• considering the implications of previous marriages and blended families;
• reviewing lifetime gifts and succession arrangements involving French assets;
• reviewing the testator’s domicile; and
• obtaining specialist advice before using trusts in connection with French assets, as trusts are not recognised in the same way under French law and may give rise to unexpected tax and succession consequences.

The European Commission’s decision does not eliminate all uncertainty surrounding Article 913(3) of the French Civil Code, and further developments are expected in this area. However, it does provide useful clarification that the provision is intended to operate only where the applicable foreign law offers no meaningful protection for children.

For UK nationals with connections to France, a carefully drafted will and coordinated Anglo-French estate planning advice remain the best way to minimise risk and ensure that succession wishes are implemented as effectively as possible.