David is 68, retired to the Dordogne from Manchester, and remarried. He owns a stone house worth about 480,000 euros, has two adult children from his first marriage living in England, and a second wife, Susan, with whom he shares his daily life in France. His English will leaves everything to Susan. He assumes that, as an Englishman, he is free to do so. That assumption is the most common and the most expensive mistake remarried British owners make in France. Under French law his children are what the Civil Code calls heritiers reservataires, forced heirs: a fixed share of his estate must reach them, whatever any will says, and the surviving spouse of a second marriage has far weaker automatic rights than the survivor of a first marriage. The good news is that French law also provides a precise toolkit for exactly this family shape: a gift between spouses taking effect at death, known as a donation au dernier vivant, which can give Susan the house for life; a right for Susan to scale that gift back, called cantonnement, so the children receive capital sooner; and an advance waiver, known by its initials RAAR, by which the children accept the arrangement while everyone is still alive. Each tool has strict formalities, each can be challenged, and choosing English law in your will changes far less than most British buyers believe. This guide explains, with the exact statutory texts and recent court decisions, what your children from a first marriage can claim, how to protect your second spouse over the French home, and how a blocked succession is fought and won.
I. Can your children from a first marriage take back what you leave your second husband or wife in France?
A. How much of your French estate your children must receive, whatever your English will says
Start with the vocabulary, because every later step depends on it. The reserve hereditaire, or forced share, is the portion of your estate that the law guarantees to certain heirs. The statute defines it in these terms: “La réserve héréditaire est la part des biens et droits successoraux dont la loi assure la dévolution libre de charges à certains héritiers dits réservataires, s’ils sont appelés à la succession et s’ils l’acceptent.” (Article 912 of the Civil Code). Everything else is the quotite disponible, the free portion you may give to anyone, including a second spouse, by gift or will. Your children are forced heirs. Your spouse is not: where there are descendants, the surviving husband or wife has no forced share at all, only the legal rights described below, which is precisely why second spouses in blended families feel exposed.
The size of the free portion depends only on the number of children you leave: “Les libéralités, soit par actes entre vifs, soit par testament, ne pourront excéder la moitié des biens du disposant, s’il ne laisse à son décès qu’un enfant ; le tiers, s’il laisse deux enfants ; le quart, s’il en laisse trois ou un plus grand nombre.” (Article 913 of the Civil Code). Take David: two children means the free portion is one third of his estate, about 160,000 euros on a 480,000-euro house, while the forced share of the two children together is two thirds, about 320,000 euros. His English will leaving everything to Susan exceeds the free portion by roughly 320,000 euros, and that excess is not merely unfair in some moral sense. It is legally recoverable: “Les libéralités, directes ou indirectes, qui portent atteinte à la réserve d’un ou plusieurs héritiers, sont réductibles à la quotité disponible lors de l’ouverture de la succession.” (Article 920 of the Civil Code). Reduction today takes the form of money rather than bricks: the over-endowed beneficiary compensates the forced heirs in cash, since the recipient “doit indemniser les héritiers réservataires à concurrence de la portion excessive de la libéralité, quel que soit cet excédent” (Article 924 of the Civil Code). In practice Susan could keep the house but would owe David’s children a large equalisation payment, which is exactly the cash crisis that destroys second-family arrangements.
The surviving spouse’s own automatic entitlement is modest where the children are not hers. The rule reads: “Si l’époux prédécédé laisse des enfants ou descendants, le conjoint survivant recueille, à son choix, l’usufruit de la totalité des biens existants ou la propriété du quart des biens lorsque tous les enfants sont issus des deux époux et la propriété du quart en présence d’un ou plusieurs enfants qui ne sont pas issus des deux époux.” (Article 757 of the Civil Code). Read that last clause twice. Where every child is the child of both spouses, the survivor chooses between a life interest (usufruit, the right to live in the property and take its income without owning its capital) over everything, or outright ownership (pleine propriete) of one quarter. Where at least one child comes from an earlier relationship, the life-interest option disappears by law and the survivor takes only one quarter in full ownership. Susan, as a second wife facing two children who are not hers, has no automatic right to stay in the house for life. Anything beyond that quarter must come from a voluntary gift, which is why the donation au dernier vivant examined in Part II is close to indispensable.
Two refinements matter enormously in blended families. First, gifts already received by the surviving spouse are credited against her legal rights through a special accounting exercise: “Les libéralités reçues du défunt par le conjoint survivant s’imputent sur les droits de celui-ci dans la succession. Lorsque les libéralités ainsi reçues sont inférieures aux droits définis aux articles 757 et 757-1, le conjoint survivant peut en réclamer le complément, sans jamais recevoir une portion des biens supérieure à la quotité définie à l’article 1094-1.” (Article 758-6 of the Civil Code), with the calculation base defined at Article 758-5 of the Civil Code. The Court of Cassation confirmed the harsh consequence for surviving spouses in a decision given on 12 January 2022 (First Civil Chamber, appeals nos. 19-25.158 and 20-10.091), a case with exactly our family shape: a man died leaving his wife and two daughters born of an earlier marriage, having made his wife a special legatee by formal will. The Court held that “Il résulte de la combinaison de ces textes que le conjoint survivant est tenu à un rapport spécial en moins prenant des libéralités reçues par lui du défunt dans les conditions définies à l’article 758-6” and that “la présomption de dispense de rapport des legs prévue à l’article 843 du code civil étant inapplicable au conjoint survivant” (Cass. 1re civ., 12 January 2022). In plain terms, a bequest to the second spouse is automatically brought back into the accounting, and the ordinary presumption that legacies are exempt from that exercise does not protect her. Second, if there were no descendants at all, the position would be transformed, since “A défaut de descendant et de conjoint survivant non divorcé, les libéralités par actes entre vifs ou testamentaires pourront épuiser la totalité des biens.” (Article 916 of the Civil Code). Childless British couples can therefore leave everything to each other freely. The moment a child from any relationship exists, that freedom ends.
Tax follows the same fault line between spouse and children. Whatever passes to the surviving spouse on death is fully exempt: “Sont exonérés de droits de mutation par décès le conjoint survivant et le partenaire lié au défunt par un pacte civil de solidarité.” (Article 796-0 bis of the General Tax Code). Each child, by contrast, is taxed on what exceeds a personal allowance: “il est effectué un abattement de 100 000 € sur la part de chacun des ascendants et sur la part de chacun des enfants vivants ou représentés par suite de prédécès ou de renonciation” (Article 779 of the General Tax Code), with progressive rates above it. And electing English law, examined next, never moves the tax border: French death duties catch French houses even where the deceased was domiciled in England for tax purposes, because the Code taxes “Les biens meubles et immeubles, que ces derniers soient possédés directement ou indirectement, situés en France” (Article 750 ter of the General Tax Code). In a Paris settlement handled by a notaire (notary, the public officer who alone settles French successions), expect the notaire to compute the forced shares first, the tax second, and your English wishes last. That ordering shocks British families, but it is the order the statute imposes.
B. Choosing English law in your French will: what it changes for a remarried British couple and what it can never change
Almost every remarried British owner has been told that a clause electing English law in the will sidesteps the forced share. The truth is narrower and must be stated exactly, because the clause remains useful but for a different reason. The European Succession Regulation, which France applies to every cross-border succession and which continues to govern British nationals owning French property after Brexit (Regulation (EU) No 650/2012, Articles 20 to 23), opens the choice to British nationals because the test is nationality, not membership of the European Union, whether the nationality is of an EU country or not, and a person with several nationalities may choose any of them; the chosen national law then governs the inheritance of all the assets, movable and immovable, wherever they are located (Your Europe, planning a cross-border inheritance). Our dedicated guide to English-law choices, forced shares and blocked successions explains the full mechanism for British wills covering French houses (British will and French house: choosing English law and challenging a blocked succession), and what follows here is the part that specifically concerns second marriages.
The clause must be made properly or it fails. the choice of law should be expressed explicitly and clearly, in a will or in a separate declaration (Your Europe, planning a cross-border inheritance). A vague sentence in an English will saying you feel English is not enough on its own if the French notaire cannot tie it to a disposition of property on death. The robust practice for a remarried owner is a French will, drawn by a notaire, containing an express professio juris (choice-of-law declaration) in favour of the law of England and Wales, sitting alongside the English will rather than contradicting it. Mirror wills that say opposite things about the same French house are a classic source of litigation between a second spouse and first-bed children, and the notaire settling the estate will apply the valid choice to the succession as a whole, not asset by asset.
What the choice cannot do is more important than what it can. English law itself gives adult children no forced share: an English testator is in principle free to leave everything to a second spouse, and the only safety net is a court application by defined relatives. Under section 1 of the Inheritance (Provision for Family and Dependants) Act 1975, a spouse, former spouse, child or dependant who considers that the will or intestacy rules fail to make reasonable financial provision for them may ask the court for an order (section 1, Inheritance (Provision for Family and Dependants) Act 1975). That is a discretionary maintenance claim, not a fixed fraction, and adult children who can support themselves usually recover little. So a valid English-law choice genuinely displaces the arithmetic of Articles 913 and 757 described above. But it displaces nothing else: French death duties still apply to the French house under Article 750 ter; the French notaire still runs the settlement and still demands translations, probate evidence and tax clearance; and the French authority handling the succession may refuse to apply provisions of the chosen national law that would be contrary to local public policy (Your Europe, planning a cross-border inheritance), a safety valve aimed at arrangements engineered purely to strip children of everything. The United Kingdom’s own official guidance reminds testators of the formal side that British families neglect: a will must be formally witnessed and signed to be legally valid, alterations require an official codicil or a new will, and dying without a will leaves the distribution to the law (GOV.UK, Make a will). An unwitnessed letter to Susan expressing English-law wishes is not a professio juris and not a will at all.
For a remarried couple the practical conclusion is therefore the opposite of the pub wisdom. Do not rely on the English-law clause alone to protect the second spouse, because even where it succeeds on the civil-law arithmetic it leaves Susan facing a French settlement process, French tax, and children who will instruct a French lawyer to attack the clause itself, its form, and any lifetime gifts around it. Use the clause as one layer, and build the protection of the survivor with French-law instruments designed for that purpose: the gift between spouses and the advance waiver. Those are the subject of Part II, and they work whether or not the English-law choice survives, which is precisely why notaires recommend them to every remarried British couple.
II. How do you give your second spouse the French house for life without disinheriting your children?
A. The gift between spouses that gives your husband or wife the house for life, and the right to scale it back
The donation au dernier vivant, literally a gift to the last living spouse, is the standard French answer to Susan’s problem. It is a gift made during the marriage, usually before a notaire, that takes effect only at death and gives the surviving spouse more than the modest legal quarter described in Part I. Where there are children, even children who are not the survivor’s own, the statute offers three calibrated options: the donor “pourra disposer en faveur de l’autre époux, soit de la propriété de ce dont il pourrait disposer en faveur d’un étranger, soit d’un quart de ses biens en propriété et des trois autres quarts en usufruit, soit encore de la totalité de ses biens en usufruit seulement” (Article 1094-1 of the Civil Code). In plain English: either the ordinary free portion in full ownership (one third with two children), or one quarter in full ownership plus three quarters in life interest, or the whole estate in life interest only. The third option is the workhorse of second marriages. Susan receives the usufruit over the entire house, meaning she lives there for life and no one can force a sale over her head, while David’s children immediately receive the nue-propriete, the bare ownership of the capital, which consolidates into full ownership when Susan dies. The children are not disinherited; their enjoyment is deferred. That deferral is normally exactly what both sides can live with, and the official Service-Public guide describes the same three options and the notaire formalities for putting them in place (Service-Public, Comment faire une donation au dernier vivant ?).
The same article contains a second gift that families discover too late: the survivor’s right to scale the gift back. “Sauf stipulation contraire du disposant, le conjoint survivant peut cantonner son émolument sur une partie des biens dont il a été disposé en sa faveur. Cette limitation ne peut être considérée comme une libéralité faite aux autres successibles.” (Article 1094-1 of the Civil Code). Cantonnement, the scaling-back, lets Susan look at the whole picture after David’s death and say: I will take my life interest over the house only, and release the savings accounts and investments to the children now. The released assets pass to the children without being treated as a gift from Susan, so no second round of gift tax is triggered between her and them, and the children’s bare ownership converts into immediate full ownership of what she releases. For a Dordogne house worth 480,000 euros with 120,000 euros of savings alongside it, Susan might canton her life interest onto the house alone; the children take 120,000 euros in cash immediately plus the bare ownership of the house, and Susan keeps a roof for life. Notaires in Paris handle this routinely at the settlement meeting a few months after death, and it requires no prior agreement with the children, only Susan’s unilateral decision recorded in the settlement. Where relations are already poor, cantonnement is often the single gesture that stops litigation before it starts, because the children receive tangible capital instead of a bare ownership that feels worthless to a twenty-five-year-old in London.
Two warnings complete the picture, and both bite specifically in second marriages. First, gifts of future property between spouses are fragile by design: “La donation de biens à venir faite entre époux pendant le mariage est toujours révocable.” (Article 1096 of the Civil Code). David can revoke the donation au dernier vivant at any time, secretly, by a later notarial act, and a bitter late-life quarrel followed by a quiet revocation is a recurring fact pattern in contested files. A second spouse who discovers at the settlement that the gift was revoked years earlier falls back to the Article 757 quarter, with no life interest. Adult children who suspect a revocation should ask the notaire for the complete chain of title and gifts; a second spouse who fears one should ask for the arrangement to be secured differently, for example through the matrimonial regime itself, with advice taken while relations are good. Second, changing the matrimonial regime to favour the survivor can backfire where the children are not common. Couples sometimes adopt a universal community with full attribution to the survivor, believing the house then passes automatically. But the statute provides that where there are children who are not the children of both spouses, any arrangement giving one spouse more than the Article 1094-1 portion “sera sans effet pour tout l’excédent” (is without effect for all of the excess) (Article 1527 of the Civil Code), through what is called the action en retranchement, the clawback of excessive matrimonial advantages. The Court of Cassation polices the boundary: in a 2009 decision concerning a second marriage under universal community where a first-bed child sued for retranchement, the First Civil Chamber held that “c’est par une exacte application des articles 1527, alinéa 2 et 368 du code civil, et sans violer l’article 14 de la Convention européenne des droits de l’homme que la cour d’appel, qui n’était pas tenue de se livrer à un examen qui ne lui était pas demandé, a décidé qu’il ne pouvait exercer l’action en retranchement” (Cass. 1re civ., 11 February 2009, no. 07-21.421), but only because that particular child had been simply adopted by the step-parent and therefore held the same succession rights as a child of the marriage. The lesson is precise: the retranchement action exists and succeeds in ordinary cases, and the 2009 refusal turned on the adoption, not on any hostility to children’s claims. Couples who want the tontine route instead, where each buyer is deemed to have owned the whole from the start, should read our companion analysis of that mechanism’s very different risks for second marriages (British second marriage and the French house in a tontine: children’s claims and the survivor’s tax), because tontine and donation au dernier vivant are alternative answers to the same question and must not be stacked blindly.
B. The advance waiver your children sign while everyone is alive, and how a blocked succession is challenged in court
The most powerful peacemaking instrument is also the least known among British families: the renonciation anticipee a l’action en reduction, universally called the RAAR, an advance waiver by which a presumed forced heir gives up in advance the right to bring the clawback claim described in Part I. The mechanism reads: “Tout héritier réservataire présomptif peut renoncer à exercer une action en réduction dans une succession non ouverte. Cette renonciation doit être faite au profit d’une ou de plusieurs personnes déterminées.” (Article 929 of the Civil Code). David’s two children can each sign, while David is alive and healthy, a waiver accepting that Susan will take the whole house in life interest, or the maximum ownership portion, without later suing for reduction. The waiver can cover the whole forced share or only part of it, and it can target one specific gift, such as the donation au dernier vivant, leaving the children free to challenge anything else. For a family that gets on well, a RAAR signed at the same notaire’s office as the donation au dernier vivant converts a future lawsuit into a settled plan, and British children living in England can sign before a French notaire during a visit, since the formalities are French regardless of where the signatory lives.
The formalities are deliberately heavy, because the law wants the child to understand the scale of the sacrifice. “La renonciation est établie par acte authentique spécifique reçu par deux notaires. Elle est signée séparément par chaque renonçant en présence des seuls notaires.” (Article 930 of the Civil Code), and the same article adds the sanction without ambiguity: “La renonciation est nulle lorsqu’elle n’a pas été établie dans les conditions fixées au précédent alinéa, ou lorsque le consentement du renonçant a été vicié par l’erreur, le dol ou la violence.” In practice that means a dedicated formal act, two notaires present, each child signing separately in the sole presence of the notaires, with the act spelling out the future legal consequences for each waiving party. A RAAR scribbled into the corner of a will, signed before a single English solicitor, or extracted from a child who was misled about the value of the house, is void, and a void RAAR leaves the reduction claim fully alive. Children who were pressed into signing, who signed without an independent valuation of the French property, or who discover the two-notaire rule was ignored, have a clean nullity argument. Conversely, parents should never economise on these formalities: a failed RAAR is worse than none, because it creates the illusion of peace while preserving the war.
When prevention has failed, the challenge routes are procedural and time-barred, so dates matter as much as rights. Only the protected persons may sue: reduction “ne pourra être demandée que par ceux au profit desquels la loi fait la réserve, par leurs héritiers ou ayants cause” (Article 921 of the Civil Code), and the same article fixes the clocks: “Le délai de prescription de l’action en réduction est fixé à cinq ans à compter de l’ouverture de la succession, ou à deux ans à compter du jour où les héritiers ont eu connaissance de l’atteinte portée à leur réserve, sans jamais pouvoir excéder dix ans à compter du décès.” A child who learns at the settlement meeting that the house went entirely to the second spouse has five years from the death, or two years from discovering the encroachment, capped at ten years. In Paris practice, where many British estates are settled because the deceased kept a Paris address or the assets cluster in Ile-de-France, the sequence runs like this: the notaire establishes the settlement project (projet de reglement) and invites observations; a child who objects withholds signature, which blocks the voluntary partition; the notaire records the disagreement (proces-verbal de difficultes); and the dispute moves to the tribunal judiciaire, the ordinary civil court, for a judicial partition (partage judiciaire) combined with the reduction claim, with the forced heir asking the court to fix the mass, value the gifts, and order the equalisation payment. Useful orientation on intestacy shares with children is given by the official inheritance guide (Service-Public, Règles en matière d’héritage : défunt ayant eu des enfants), but the litigation itself turns on valuation evidence: competing estate-agent appraisals of the house, the date at which gifts are valued, and the precise arithmetic of Articles 913, 757 and 1094-1. For the Paris region specifically, expect the tribunal judiciaire de Paris to appoint a notaire to supervise the partition operations, Hauts-de-Seine and Yvelines files follow the same pattern before Nanterre and Versailles, and files routinely take eighteen months to three years, during which the surviving spouse’s life interest, once recognised, continues to protect her occupation of the home.
Each side therefore has a mirror-image checklist. For the remarried owner: sign an express English-law choice in notarial form without making it the only shield; execute a donation au dernier vivant calibrated to the family (often the full life-interest option where the house is the main asset); consider asking the children for a RAAR limited to that gift, with full valuation disclosure and both notaires; keep the matrimonial regime under review rather than assuming a universal community solves everything; and keep every instrument with one notaire so revocations and contradictions surface early. For the children of a first marriage: demand the complete gift and will chain from the settling notaire; verify the RAAR formalities line by line if one is opposed to you; obtain your own valuation of the French property rather than accepting the survivor’s figure; diary the five-year, two-year and ten-year limits from the date of death; and refuse to sign a settlement project you do not understand, because signature closes doors that stay open while you withhold it. For the surviving second spouse: accept that your strongest protection is a life interest plus cantonnement rather than outright ownership of everything; exercise cantonnement promptly at the settlement where releasing capital buys peace; and if the children sue, defend on valuation and on the English-law choice where one validly exists, rather than on sentiment. Courts in these cases do arithmetic, not elegies.
Conclusion
A remarried British owner in France stands at the intersection of two philosophies: English freedom to leave everything to the second spouse, and the French guarantee that children from every relationship receive a fixed share. Neither philosophy fully wins. The children cannot be written out by an English will alone, and the second spouse need not be left with a bare quarter in ownership of a house she cannot afford to keep. The donation au dernier vivant gives her the home for life, cantonnement lets her trade surplus rights for family peace, the RAAR lets consenting children lock the arrangement in while everyone is alive, and the English-law choice remains a valuable second layer that must be drafted in strict notarial form. Every one of these instruments has been tested before the Court of Cassation, every one carries nullity traps for the careless, and every challenge runs on short limitation clocks. Take advice while the family still talks, put the chosen combination before a notaire, and make sure the children see the valuations. Successions that are explained in life are rarely litigated in death.