For foreign lawyers or expatriate families not familiar with French inheritance laws, but with assets in France, it is important to be aware of the existence of the forced heirship rule provided by articles 912 and following of the French Civil Code. According to this rule, some heirs, namely the deceased’s children and in some cases the surviving spouse, are protected by law, and cannot be deprived of their rights in the estate of the deceased, except in extreme circumstances.

The rule of forced heirship makes the job of estate planners increasingly challenging, in a world where people tend to hold assets in various jurisdictions. There has been debates in France about maintaining this rule. In 2017, the French Supreme Court went as far as ruling for the first time[1] that a foreign law could exclude protected heirs from their inheritance.

However, a new law, adopted by the French Parliament on 24 August 2021[2], when most of French nationals were still enjoying their summer holidays, appears to be taking a step back. Indeed, this law, which came into force on 1 November 2021, amended articles 913 and 921 of the French Civil Code, by providing for an increased protection of the rights of protected heirs in situations where the deceased or one of his/her heirs is either from a member state of the European Union or a habitual resident of a member state of the European Union.

The new version of article 913 of the French Civil Code is of particular interest to Hong Kong estate planners or lawyers assisting French clients in Hong Kong, since it provides the possibility for protected heirs, who were prevented from inheriting due to the application of Hong Kong law which does not recognise the French rule of forced heirship, to recover the share to which they are entitled under French law, on the assets situated in France at the time of death.

Therefore, Hong Kong lawyers should be wary when drafting Hong Kong wills for their clients with a French domicile of origin, and clearly advise them on the risks of their wills being challenged in France, should they wish to override the French forced heirship rule which could be applicable to their issue.

This new French law must not be overlooked when executing a will or dealing with probate, since it could well bring some upheaval in certain cases, if not prudently considered and the clients are not informed of such risks.

For any questions relating to this new law or French inheritance law in general, please do not hesitate to contact the author, Ms Sarah Jane Tasteyre, at sarahjane.tasteyre@jcco-hk.com.

[1] Cass. 1ere civ. 27 sept. 2017

[2] Loi no. 2021-1109 du 24 aout 2021 confortant les principes de la République

Published in the May 2022 issue of Hong Kong Lawyer

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CategoryFamily, France

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