The prospect to fully disinherit one's children may shock; French law still seems to prohibit it. As a matter of fact, a recent case law seems to consider that the legal reserved portion of an estate could not be affected if the children were deprived. Forced heirship seems to remain a French specialty.
As lawyers in estate & inheritance, we often act on behalf of heirs who wish to bring international estate before French courts to benefit from this forced heirship, while they would be deprived of their interests in foreign countries. In the light of the recent news and the Johnny Hallyday estate situation, it seems useful to make a quick and simple summary on the various existing issues. This article is aimed at giving a straightforward understanding of the law, but needs to be tailored to your need in regard with conflict of laws resolution for the settlement of international succession cases.
Alone in the world
In the English speaking countries, under Common Law, everyone is free to organize his estate as he wants: freedom of disposition. In the United States, in general, "Business is business": contractual freedom and the freedom to dispose of one's assets are required. This can be a problem when a French citizen settles in the United States, drawing up a will on the other side of the Atlantic preparing for the removal of his fortune from two of his children.
In the United States, a will is subject to the law of the State in which it is drafted. Following a death, the last dated will prevail. The deceased usually mentions a person outside the family (executor) who will be in charge of respecting his last wishes. Generally, the surviving spouse is the only person who can require a type of legal reserve to survive the death of his or her spouse. Children have no legal right to a share in the estate, but the law protects children in the event of an accidental omission by the parent, especially when the will is drawn up before the child was born. Moreover, it is common that a will is challenged in the United States, when an heir wants to recover his or her due.
In China, a person can also organize his succession as he wants. It is possible to disinherit a child if the latter is adult and able to work. In the absence of a will, Chinese law provides two orders of legal heirs and the division of assets takes place in equal shares among heirs of the same order. However, this distribution takes into consideration each person's financial situation and behavior towards the deceased during his or her lifetime. Chinese culture has great respect for ancestors.
In Saudi Arabia, children are protected, each child is guaranteed a share of the estate. Even if the child is unworthy, he cannot be disinherited. On the death of the patriarch, his wife and children receive the patrimony.
In Russia, a notarized will is required. It can designate heirs or other persons, but also the Russian Federation. The legal share of the estate is granted towards certain heirs according to their unfitness for work.
In regard with this multitude of possibilities, a testator may be tempted to accept the law he considers most favorable to his will, by being a resident of the country or by designating the foreign law as applicable to his will. You may keep in mind that the above development is theoretical and need to be adapted to each situation.
Between tradition and freedom: The swing of the European Union
In the European Union, protecting the direct descendants heritage remains the rule, while “inheritance” is the exception. A legal reserve is a guarantee for children not to be disinherited by their parents and deprived of part of their inheritance. Thus, the law protects them and allows them to obtain a share of their inheritance.
Shaken by the European regulations on international successions, France saves its principles and is committed to this protection. When transposing the European regulation, the former Minister of Justice, Christiane Taubira, stated that this principle "ensures a balance between respect for the inheritance rights of the reserved heirs and the free disposal of patrimony ".
The possibility of a legal reserved portion of the estate exists in many southern European countries, such as Croatia, Greece, Spain, Hungary, Portugal and Italy. But also, in Germany, in the Netherlands, in Sweden, based on the protection of the progeny, that plan a reserved portion of the estate. Likewise, Luxemburg and Belgium provide the right of a reserved portion only for the children, a portion that reaches 2/3 of the inheritance until two children and ¾ with three children or more.
The United Kingdom and the North of Ireland is out of this roman tradition, none fixed portion of the estate is intended to direct descendants nor even to the surviving spouse. The testator defines by himself the terms in his will.
Disinheriting a child remains a strong act, the French Civil Code provides a framework for the possibility of dispossessing a so-called "unworthy" child, that carries an exception to the hereditary reserve. In Spain, this possibility is also regulated by the Civil Code.
Disinheriting children under EU rules
Came into application on 17th August 2015, the European regulation on International inheritance introduce a new deal. This regulation plans that the rules recovering the estate of a EU citizen will be the state ones where the deceased stays, and not the ones from its native country. The rules take into consideration the totality of the estate assets wherever they might be.
A foreign citizen could then contemplate to disinherit one of his children by moving before his death in a country that does not hold back a reserved portion for heirs (like the UK, the USA). However, a judge will have to adjudicate if this determination is effective, and not a simple box letter, to profit for a preferred arrangement.
Contesting a will is particularly difficult but not impossible! Ensuring that the deceased's wishes are respected or, on the contrary, challenging this decision requires the support of experienced lawyers. Picovschi Lawyers, with its experience in international inheritance law, helps torn families who simply wish to grieve.
