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Source : Cour de cassation – Base Open Data « Judilibre » & « Légifrance ».

Barreau de Paris Immobilier, sociétés, affaires Fiche CNB avocat.fr
Maître Reda KOHEN, avocat au Barreau de Paris
Maître Reda KOHEN
Avocat au Barreau de Paris

My English Will Leaves My French House to My Spouse: Will France Honour It After Brexit?

You bought a stone house in the Dordogne ten years ago, you now live in France full time, and your English will says, in plain terms, that everything goes to your husband or wife. It feels settled. Then a friend mentions the French forced share, the notaire asks for a translation of the will, and one of your children asks what exactly they will inherit. Suddenly the question you thought your will had answered is open again: will France honour an English will that leaves a French house to the surviving spouse, and what can your children still claim? This guide answers that question for British nationals living in France after Brexit. It explains which succession law applies to your French house, whether your will can choose English law, how the French forced share for children works in figures, what formal steps make the will effective before a French notaire, and how each side can challenge an outcome it considers wrong. French legal terms are explained the first time they appear.

The short answer is that your English will is not ignored in France, but it does not wipe out the rights French law gives to your children. Since Brexit changed nothing about the European succession rules applied by French courts, the law governing your estate is, by default, the law of the country where you were habitually resident when you died, which for most British settlers means French law. You can, in your will, choose the law of your nationality instead, and that choice is effective, but it does not always remove every French protection for children, and it never removes French tax on the French house. The rest of this article shows you, step by step, how these rules combine and what to do about them.

I. I Live in France: Which Succession Law Applies to My French House After Brexit?

Many British readers assume that an English will automatically carries English law with it wherever their property sits. In France that assumption is wrong. A French notaire settling your estate, what the French call the reglement de la succession, first asks which national law governs the succession as a whole, and only then reads what your will says. The answer comes from a European regulation that French courts still apply to every cross-border succession, including successions of British nationals who settled in France after Brexit.

A. What happens if my will says nothing about which law applies?

If your will contains no choice of law, the succession is governed by the law of the State in which you had your habitual residence at the time of death. That is the rule in Article 21 of the European Succession Regulation, Regulation (EU) No 650/2012, the text of which is published on the European Union legislation site (Regulation (EU) No 650/2012 on eur-lex.europa.eu). Habitual residence means far more than the address on your tax return: the notaire and, if there is a dispute, the court look at where you actually lived day to day, where your family life was centred, how long you had been there, and where your main interests lay. For a British national who has lived in France for years, is registered with the French health system, pays French income tax as a resident, and owns and occupies the French house, the answer will in practice almost always be France. French courts apply this analysis routinely, including in cases where the family argued about whether the deceased was really habitually resident in France; one Paris judgment, for example, examined residence in detail before holding that French courts had jurisdiction and that French law governed the whole succession under the Regulation (see Tribunal judiciaire de Paris, 12 November 2024, No 22/05367).

Brexit did not change this. The United Kingdom never took part in the Succession Regulation, but that never mattered for estates handled in France: it is the French court that applies the Regulation, and it designates whichever law its rules point to, including the law of a country outside the European Union. So a British national who dies habitually resident in France sees French succession law applied to the French house and, in principle, to the rest of the estate too, unless the will validly chooses another law. The practical consequence is immediate. Under French law your children are reserved heirs, what the French call heritiers reservataires: the statute defines this protection by saying “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 on Légifrance). In plain English, a fixed share of your estate must go to your children free of charges, and no will can simply delete that right. The freely disposable share, the quotité disponible, is only what is left after that protected share. If you leave one child, the protected share is one half and the disposable share is one half; with two children the protected share is two thirds; with three or more children it is three quarters (Article 913 of the Civil Code on Légifrance). A will that leaves everything, including a French house worth most of the estate, to the surviving spouse therefore collides directly with the children’s protected share whenever the house is worth more than the disposable share, which is the normal case for a family whose main asset is the home.

This is the point at which many British families discover the gap between the two systems. Under the law of England and Wales, testamentary freedom is the starting point and disappointed relatives must bring a targeted claim, for example under the Inheritance (Provision for Family and Dependants) Act 1975, which is a different and narrower route than an automatic fixed share. In France the protection is automatic: it does not have to be claimed to exist, although going to court may be needed to enforce it, as explained in Part II. So the first question to ask about your own situation is not what your will says, but which law governs your succession. If you have lived in France for years and your will says nothing about the applicable law, assume a French notaire will apply French law, including the forced share, to the French house. The remedy, if you want English law to govern instead, is a choice-of-law clause written into the will itself, and that is the subject of the next section.

B. Can my English will choose English law to avoid the French forced share?

Yes, and this is the single most useful sentence in this article for a British reader: a person may choose, as the law governing the succession as a whole, the law of the State whose nationality he or she holds, and that choice must be made in a disposition of property upon death such as a will. That is the mechanism in Article 22 of the Succession Regulation, known to lawyers as professio juris, and it is open to British nationals even though the United Kingdom is no longer in the European Union. A clause in your English will stating that you choose the law of England and Wales to govern your succession is, in principle, effective before the French notaire and the French courts. Because the Regulation lets you choose only the law of your nationality, a British national cannot choose, say, the law of a Channel Island or of a third country whose rules look convenient; the choice must match the nationality held when the choice is made or at death. Dual French-British nationals should take specific advice, because holding French nationality alongside British nationality changes the analysis and can neutralise the strategy described here.

Choosing English law genuinely changes a great deal. Questions of who inherits, in what shares, and whether a will is valid in substance are then decided under English law, which starts from testamentary freedom. A gift of the French house to the surviving spouse, which French domestic law would cut back in favour of the children, can therefore stand under English law. But three limits must be understood clearly, because each of them generates real disputes. First, the choice governs the civil side of succession, not tax. France will still tax the French house under French tax rules, with its own allowances and rates, whichever civil law applies. Second, formal validity and administration in France still run through French channels: the estate needs a French notaire, French land registration, and documents the French system accepts, as Part II explains. Third, and most delicate, French law has created a safety net for children where the applicable foreign law gives them no protected share at all. Since the statute of 24 August 2021, the Civil Code provides that where the deceased or at least one of the children was, at the death, a national of a European Union Member State or habitually resident there, and the foreign law applicable to the succession offers no reserved-share mechanism protecting children, each child may take a compensatory levy, a prelevement compensatoire, on assets situated in France at the death, so as to recover the protected rights French law would have given: “chaque enfant ou ses héritiers ou ses ayants cause peuvent effectuer un prélèvement compensatoire sur les biens existants situés en France au jour du décès, de façon à être rétablis dans les droits réservataires que leur octroie la loi française, dans la limite de ceux-ci” (Article 913, final paragraph, of the Civil Code on Légifrance). For a British testator whose children live in France or hold French nationality alongside British nationality, this mechanism can partly restore what the choice of English law removed, and it applies precisely to the French house. The lesson is practical: a choice-of-law clause is powerful and usually recommended, but it is not a magic shield, and its wording, its scope, and the family nationalities and residences must be reviewed as one package rather than clause by clause.

II. I Want to Leave Everything to My Spouse: Will My Children Be Able to Challenge the Will?

Assume now that French law governs your succession, because you were habitually resident in France and your will contains no choice of English law, or because the choice fails on some point. Your will leaves the French house to your husband or wife. Can your children undo that gift? The honest answer is that they cannot cancel the will as a whole, but they can force the economics back into line: French law gives a reserved heir an action for reduction, the action en réduction, which cuts excessive gifts back to the disposable share and turns the excess into compensation. The will stands; the figures change. This section works through the calculation on a realistic example, then explains how to make the will formally effective in France and what happens on tax and on challenge.

A. How is the forced share of my children calculated on the French house?

Take a typical British family settled in France: a couple own a house near Sarlat worth 400,000 euros, with modest savings of 40,000 euros, so the estate totals 440,000 euros. They have two children. The will leaves everything to the surviving spouse. Under French law the protected share for two children is two thirds of the estate, or about 293,333 euros, roughly 146,667 euros per child, and the disposable share is one third, about 146,667 euros. The gift to the spouse is worth the whole 440,000 euros, so it exceeds the disposable share by about 293,333 euros. Each child can demand reduction of that excess. The statute states the starting point for every such calculation: “La réduction se détermine en formant une masse de tous les biens existant au décès du donateur ou testateur” (Article 922 of the Civil Code on Légifrance), which means the notaire first builds a single mass of everything owned at death, adds back lifetime gifts fictitiously, deducts debts, and only then measures the shares. Lifetime gifts matter: a house given to one child ten years ago, or regular large money transfers, are fictitiously reunited with the estate for the calculation, so parents who gave early and then left the house to the spouse in the will are often surprised twice.

How the excess is paid is just as important as how it is measured. The modern rule is compensation in value, not recovery of the bricks: “Lorsque la libéralité excède la quotité disponible, le gratifié, successible ou non successible, 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 on Légifrance). In our example the surviving spouse keeps the house and owes each child an indemnity of about 146,667 euros, payable in money or by taking a smaller share on division, what the French call payment en moins prenant. Whether that is affordable is a separate question the couple must face while both are alive: a spouse who inherits a 400,000 euro house but owes nearly 300,000 euros to the children may have to sell the very house the will was meant to protect. This is why advice limited to the wording of the will, without the arithmetic, is dangerous.

One variant deserves special attention because British wills use it constantly: leaving the spouse only a life interest, the equivalent of a usufruit, over the house, with the children taking the underlying ownership. Many testators assume that because a life interest is worth less than full ownership, it must fit inside the disposable share. The Court of Cassation has rejected that shortcut. It holds that “Il résulte du premier de ces textes qu’aucune disposition testamentaire ne peut modifier les droits que les héritiers réservataires tiennent de la loi”, that “Aux termes du second, la libéralité faite hors part successorale s’impute sur la quotité disponible. L’excédent est sujet à réduction”, and that “Il s’en déduit que les libéralités faites en usufruit s’imputent en assiette” (Court of Cassation, First Civil Chamber, 22 June 2022, No 20-23.215). In plain terms, a life interest over the whole house is measured against the disposable share by reference to the property it burdens, not merely by converting the life interest into a discounted capital value, and a court that only compared discounted values was quashed for violating the statute. For British readers this means a life-interest will needs the same arithmetic as an outright gift, and the surviving spouse can face a reduction claim either way. Children who consider themselves short-changed are not without procedure: the reduction action is reserved to them, their heirs and assigns, and it must be brought within five years from the opening of the succession, or two years from the day the heirs learned of the infringement, and never more than ten years after the death, while the notaire who spots a possible infringement must warn each known heir individually of the right to seek reduction (Article 921 of the Civil Code on Légifrance). A child who sleeps on these time limits can lose the claim, and a spouse who assumes silence means consent can be mistaken.

B. How do I make the will formally valid in France, and what tax will be due?

A will that is perfect under English law can still stumble at the French notaire’s desk if nobody can prove what it says or that it counts as a will in the form France requires for the steps taken in France. There are two reliable routes. The first is a French holographic will, the testament olographe: a document written entirely by hand, dated and signed by the testator, with no other formal requirement, since “Le testament olographe ne sera point valable s’il n’est écrit en entier, daté et signé de la main du testateur : il n’est assujetti à aucune autre forme” (Article 970 of the Civil Code on Légifrance). Typed, witnessed English-style wills do not meet this definition, so an English will kept in a drawer in Kent is not a testament olographe; it must enter the French estate through the second route, which is proof of the foreign will before the notaire with a sworn translation, and where needed through the court. The Court of Cassation insists on the handwritten, dated and signed conditions with real strictness: in a case about a German testator living in France whose French-language will was in his hand while the German explanatory note was not, the court examined which paper was truly written, dated and signed by his hand before deciding validity, recalling that “Aux termes de ce texte, le testament olographe ne sera point valable s’il n’est écrit en entier, daté et signé de la main du testateur : il n’est assujetti à aucune autre forme” (Court of Cassation, First Civil Chamber, 9 June 2021, No 19-21.770). The lesson for British testators is concrete: keep the English will for the English assets and English-law choice, and add either a French holographic will for the French side or a notarial will received by a French notaire, since “Le testament par acte public est reçu par deux notaires ou par un notaire assisté de deux témoins” (Article 971 of the Civil Code on Légifrance). Have every foreign will translated by a sworn translator, what the French call a traducteur assermenté, register the French will centrally so it is found, and give the notaire handling the estate a certified copy of the English grant of probate with an apostille rather than a simple photocopy.

On the substance, name the gift correctly. A clause leaving everything to the spouse is normally a universal legacy, and the Code defines it as follows: “Le legs universel est la disposition testamentaire par laquelle le testateur donne à une ou plusieurs personnes l’universalité des biens qu’il laissera à son décès” (Article 1003 of the Civil Code on Légifrance). A universal legatee who is not an heir still needs formal delivery of the legacy, the delivrance de legs, from the heirs, which is why a spouse armed with an English will can be blocked for months when children refuse to cooperate. The answer is not self-help but procedure: a formal demand for delivery, then an application to the court, with interest and occupation indemnities sorted at the same time. Readers facing the mirror situation after a death, where the estate is already stuck, will find the step-by-step unblocking method in our companion guide on probate, the notaire and succession tax when a British parent dies owning a house in France.

Tax follows its own track. The French house is taxed in France under French rules even where English law governs the civil succession. Each child benefits from a personal allowance of 100,000 euros on what each receives from each parent, since “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 on Légifrance), and above the allowances the progressive scale in the direct line runs from 5 percent on the first slice to 20 percent up to 552,324 euros, then 30, 40 and 45 percent on the higher slices (Article 777 of the General Tax Code on Légifrance). Lifetime gifts given less than fifteen years earlier are added back to compute the tax and use up allowances, because “La perception est effectuée en ajoutant à la valeur des biens compris dans la donation ou la déclaration de succession celle des biens qui ont fait l’objet de donations antérieures, à l’exception de celles passées depuis plus de quinze ans” (Article 784 of the General Tax Code on Légifrance). In our Sarlat example, if each child ultimately receives about 146,667 euros after reduction, each child deducts the 100,000 euro allowance and pays 5 percent on the first 8,072 euros above it, 10 percent on the next slice, and so on, a bill measured in a few thousand euros rather than tens of thousands. Transfers between spouses follow a dedicated exemption regime applied by the notaire in the succession return, and the United Kingdom may separately claim its own inheritance tax on United Kingdom-situated assets, so a British personal representative should always check the United Kingdom position on making a will on gov.uk and take separate United Kingdom tax advice. For the French administration of the estate, the official service-public.fr succession pages and the impots.gouv.fr inheritance pages describe the returns and deadlines in practical terms (see succession on service-public.fr).

Finally, each party has a route to challenge. Children who believe the spouse’s gift exceeds the disposable share send a formal demand for reduction, then sue before the judicial court of the place where the succession opened, within the five-year, two-year and ten-year limits set out above, with a notarial valuation and, where lifetime gifts are disputed, a full statement of the reunited mass. A spouse met with refusal of delivery of the legacy demands delivery in writing, claims an occupation indemnity if kept out of the house, and applies to the court for enforcement of the legacy and damages for delay. Both sides should gather the same core file from day one: the death certificate, the marriage contract or civil partnership deed, both the English and any French will with sworn translations, the grant of probate with apostille, the property title deeds, the last fifteen years of gifts, and every letter from the notaire. Succession disputes are won on documents and deadlines, and the side whose file is complete on the first appointment is the side that controls the timetable.

Conclusion

An English will that leaves your French house to your spouse is respected in France, but it operates inside French machinery you cannot ignore. Without a choice-of-law clause, French law governs the succession of a British national habitually resident in France, and the children’s forced share then cuts any excessive gift back to the disposable share through a money indemnity, whether the gift is outright or only a life interest. A clause choosing the law of England and Wales is effective and usually advisable, yet it does not remove French tax, French formalities, or, in some family configurations, the compensatory levy that restores children against French-situated assets. The practical programme follows from this: put an express choice of English law in the English will, mirror it with a French holographic or notarial will that the local notaire can apply without a fight, run the forced-share arithmetic on today’s values before signing anything, have the translations and the probate papers ready, and diary the reduction time limits. Done in that order, the will you wrote in England stands the best chance of doing in France exactly what you meant, which is to protect your spouse without disinheriting a war with your children.

Source : Cour de cassation – Base Open Data « Judilibre » & « Légifrance ».

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