Forced Heirship: Can You Disinherit Your Children?

The succession of the rock star, Johnny Hallyday, opened debates on the choice of his heirs. His will, leaving €100 million to his fourth wife and eliminating children from a previous marriage, has ignited the media and disturbed the French because it involved the questions of death, money, marital and parental ties to an off-the-charts star. (Hallyday was married five times, including twice to the same woman, with the first four marriages ending in divorce. His last marriage was his longest, lasting twenty-one years.) The disinherited children are contesting the will arguing that though it was signed under Californian law, it is contradicted by French legislation that prevents children from being disinherited.

The opinion has divided France into two camps. The first advocating the freedom of anyone to dispose of his property as he wishes. The second rejecting the idea that a parent could totally disinherit his children, which is how it is now in French law (forced heirship).
 
Napoleonic Code introduced in the 1800s created Forced Heirship, specifying that a minimum proportion of your assets (worldwide moveable assets and French real estate) must pass to your children (spouses are not protected heirs if you have children) as follows:

One child – 50%
Two children – 66%
Three or more – 75%

You cannot circumvent this with a will, but you can leave the balance of your estate to whomever you wish. However, the Certificate of Succession or “Brussels IV” that came into effect in August 2015 defaults the succession law to the country where the deceased is resident (as in Hallyday’s case) and foreigners living in an EU country can elect to apply the law of their country of nationality instead. You simply have to state this in a French will to be certain it will apply.

Johnny’s estate is complicated with multiple marriages and large age differences. Domicile as one of the key elements of the dispute, which has to do with the applicable national law. As much as France would like to take control, it cannot legislate in other countries and cannot prevent the return of its nationals. It is struggling with the bold reality that our society follows less traditional patterns for the family unit.

Reformists question if it is necessary, following the California model where Johnny has lived since the early 2000s, to change the law to better respect the will, and therefore the freedom of each, to dispose of his property as they wish? Or, on the contrary, is it better to continue to protect families, especially children and spouses, from a gust of liberalism that would forget the bloodlines?

The Notaires warn that such comments mislead the public into oversimplifying the debate. This doesn’t surprise me, considering how it is traditionally French to complicate matters and their socialist natures to protect the underdog! Personally, this debate is music to my ears as of course I agree that one should have the freedom to bequeath an estate to whomever they wish, even if it’s to a surviving pet or a worthwhile charity. As a foreign national, I would have the choice to elect the U.S. as the law under which my estate would be bequeathed, but the taxation as a resident of France, remains the same, something I’m personally struggling with as I reach retirement age.

Note: inheritance taxation has little to do with whom you chose to inherit your property and could increase your heirs’ tax bill, instead!

When you set out to purchase a property in France, one of the most important aspects is setting up the structure of the deed in a way that benefits you and your heirs as much as possible. Understanding the law and getting good advice is key to making the right decisions. That being said, be prepared for changes in the law that cannot be foreseen, just as the date of your death is as illusory!

The good news is that when you sign the pre-sale agreement, there is a clause called the “Clause de Substitution” that allows you to change the structure of the title between the signing of that document and the final deed. This gives you the time to get the proper advice and make the best decision so that your estate does not end up in the courts as Johnny Hallyday’s is!

A bientôt,

Adrian Leeds
Adrian Leeds Group

(with daughter, Erica)

Respond to Adrian:
[email protected]

P.S. Don’t miss the re-airing of our House Hunters International episode, Perturbed in Paris, Tuesday Mar 20 7:00am ET6:00 CT. Set your DVRs now!