Succession law reform
French succession law has remained largely unchanged since the introduction of the Napoleonic Code 1804. It is a testament to the drafting of the original code that, in the main, the provisions have stood the test of time, however in recent years there has been need to adapt the parts of the civil code relating to succession and to recognise the realities of modern life. An initial succession reform acte was introduced in 2001. A further reform acte affecting more than 200 articles of the civil code was adopted by the French parliament on 14 th June 2006 and is expected to come into force on 1 st January 2007. Some of the many but most of the pertinent changes are briefly outlined below.
Many people do not realise that in France the surviving spouse does not take priority in inheriting his/her partner’s estate. At the time of introducing the rules of inheritance the spouse was considered a stranger to the family. The rules were not introduced to protect the surviving spouse but to protect the family and put an end to the practice of primogeniture, whereby property was handed down to the first-born son, by legally obliging parents to divide their estate among their children equally. Until recently the surviving spouse was in fourth position in the order of succession after children, parents and siblings of the deceased. Contemporarily individuals estates are more likely to be comprised of revenue generated from endeavour and much less from property passed down from generation to generation. Resulting from the reform of 3 rd December 2001, the surviving spouse currently occupies third place in the order of succession in addition to benefiting from other improvements in inheritance rights. The upcoming reform aims at providing still more protection for the surviving spouse by augmenting the share in the estate that can be left without penalising the children of the couple or children of the deceased by previous relationship. The reform provides for the introduction of an inheritance agreement, enlarges the scope of the existing mechanism whereby parents can gift their property to their children during their lifetimes, and relaxes the rules relating to joint ownership. The broad outlines of the provisions are provided as follows:
This contract which must be signed in front of a notaire is designed to favour arrangements between family members and in particular families with children from previous relationships. Children can renounce part or all of their reserve (part of their parent’s estate to which they have a reserved right) to the benefit of their step parent. In principle all children of the deceased must take in equal proportion, however on condition that all concerned parties agree it will now be possible to favour one child who is perhaps financially disadvantaged in comparison with his/her brothers and sisters. As the law currently stands a child can only relinquish his/her share in the estate at the time of administration of the parent’s estate after his/her death, and not before, in addition to which he/she cannot grant it to a particular person since it is necessarily divided equally amongst his/her brothers and sisters. The fundamental principles of inheritance law remain however, and parents will not be able to disinherit a child.
The scope of the existing mechanism whereby parents can gift ownership of their estate to their children during their lifetime is to be enlarged. The average age at which a person inherits in France has increased in line with life expectancy, and presently stands at 52 years. The current situation is that children inherit from their parents. The reform will enable grandparents to pass their estate to their grandchildren directly, thus jumping a generation. This will only be possible with the agreement of the parents and grandchildren, and must be validated by a notarised agreement. Grandparents will now be able to determine the distribution of their estate between their children and their grandchildren definitively during their lifetime, avoiding family conflict at the time of the administration of their estate. The donation-partage will also be possible in families in which there are children from previous relationships, which is not currently permitted. This will enable parents to distribute their estate in an equal manner to their children and step-children.
Rules of indivision :
Often the source of conflict within large families and families in which there are children of different relationships, where property is held in indivision it is necessary to have the unanimous agreement of all owners for every decision to be taken concerning even the management of a property. It is for this reason that properties often end up abandoned due to conflicts between certain heirs. In order to facilitate the management of property the reform provides that certain decisions can be taken on a two-thirds majority. Unanimity will still however be required with respect to a sale.
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