The French inheritance law introduced in 2021 has ignited significant debates and concerns, particularly among foreign couples living in France or owning property there. This law’s provision obliging notaires to inform children about their right to claim a ‘compensatory levy’ if the estate is distributed according to a non-French inheritance law has indeed caused considerable anxiety. For those who had carefully crafted wills based on the 2012 EU regulation, which allows choosing the inheritance law of their nationality, this new stipulation represents a substantial and unwelcome shift.
The European Commission’s Review
Multiple Complaints and Ongoing Discussions
The European Commission is currently reviewing numerous complaints about the French law, reflecting the widespread concern it has generated among affected parties. Since its enactment, the Commission has engaged in ongoing discussions with France to understand and address these concerns and expects to provide its position soon. This entire process highlights the complexity of the legal and policy questions raised by the law, indicating that it could be subject to various interpretations. Consequently, the Commission has indicated that it remains unclear whether the law constitutes a clear infringement of EU law, adding another layer of uncertainty for those involved.
Potential Disruption of Estate Plans
One of the major criticisms of the law lies in its potential to disrupt the estate plans of many foreigners who have diligently planned to protect their surviving spouse, particularly in families with children from previous marriages. These individuals commonly rely on the flexibility offered by the 2012 EU regulation, which permits them to choose their national inheritance laws, thus allowing them more control over bequeathing property. Critics argue that the new French law undermines this flexibility, rendering the 2012 EU regulation’s provisions less effective and introducing significant uncertainties into the estate planning process. By altering established legal expectations, the law could essentially dismantle carefully constructed estate plans, leading to unanticipated financial and emotional distress for many families.
French Authorities’ Defense
Preventing Discrimination and Ensuring Equity
French authorities have vigorously defended the new inheritance law, arguing that it is a necessary measure to prevent discrimination against women and ensure equitable treatment of children, regardless of their sex, orientation, religion, or parentage. They have specifically cited Article 35 of the EU inheritance regulation, which allows member countries to refuse the application of a chosen law if it is incompatible with the country’s fundamental values. By invoking this article, French officials seek to justify the compensatory levy as a mechanism to uphold fundamental principles of equality and non-discrimination. According to their argument, the law serves a broader social purpose, addressing systemic issues within certain inheritance practices that might otherwise perpetuate discrimination.
Senate’s Initial Rejection
Interestingly, the French Senate initially rejected the bill, expressing doubts about its necessity for protecting women’s rights and stating that Article 35 of the EU inheritance regulation already provided adequate mechanisms to address blatant sex discrimination in inheritance matters. Senators emphasized that the new law is more likely to impact estates governed by ‘Anglo-Saxon’ laws, such as those of the US, UK, Canada, or Australia, which do not traditionally discriminate against women. This critical viewpoint suggests that the law was seen by some lawmakers as superfluous, potentially creating more harm than good by complicating legal processes without offering significant additional protections. They argued that the law primarily affects individuals who have used their testamentary freedom to make specific bequests, such as prioritizing a spouse over children.
Critics’ Perspectives
Legal Experts’ Concerns
Prominent critics, including honorary avocat Gerard Barron and notaire François Trémosa, have voiced strong opposition to the law, arguing that it creates unnecessary complications and stress for affected families. They believe that the determination of whether a will is discriminatory should be left in the hands of notaires or French courts, to be decided on a case-by-case basis rather than implementing a blanket rule. This approach, they argue, would better respect the individual nuances of each case and allow for a more judicious and less disruptive application of the law. Barron and Trémosa contend that such a rigid legal requirement disregards the diverse and often complex personal circumstances that shape estate planning decisions.
Incoherence with EU Regulation
François Trémosa, who was instrumental in developing the 2012 EU regulation, has been particularly vocal in dismissing the ministry’s arguments for the compensatory levy, calling them incoherent and inconsistent with the intent of the EU regulation. He asserts that the 2012 regulation aimed to provide individuals with the freedom to choose their national inheritance laws, offering them greater flexibility and control in their estate planning. By imposing a rigid, mandatory requirement, the French law is seen as contradicting this foundational principle, essentially revoking the freedoms that the 2012 regulation sought to enshrine. Trémosa’s critique underscores a significant tension between national legal reforms and overarching EU regulations, shedding light on the potential conflicts that can arise in a multi-jurisdictional context.
Impact on Foreign Families
Anxiety and Uncertainty
The ongoing distress and frustration among affected foreign families have been significant, with some even contemplating drastic measures such as selling their homes and leaving France due to the uncertainty and potential financial impact imposed by the law. This heightened anxiety reflects the deep discomfort and disruption caused by the new inheritance regulations, as individuals who once felt secure in their estate plans now face an unpredictable legal landscape. The European Commission’s final decision on whether to launch infringement proceedings against France will be crucial in determining the future of this controversial law, potentially providing much-needed clarity and direction for affected foreign property owners and residents in France.
Broader Efforts to Combat Discrimination
The complexity of this issue is apparent from the interwoven legal, social, and political perspectives that have emerged in the debate. The French government’s stance is rooted in broader efforts to combat sectarianism and protect individuals from discriminatory practices that may arise from certain foreign inheritance laws. However, these broader objectives must be balanced against the individual rights and personal freedoms that the 2012 EU regulation sought to protect. The law’s critics emphasize that the government’s approach overreaches in this context, disrupting personal estate planning choices without providing concrete evidence of widespread discriminatory practices among the targeted ‘Anglo-Saxon’ laws.
Balancing Personal Freedoms and Public Policy
Testamentary Freedoms vs. Non-Discriminatory Practices
The overarching trend in this contentious debate is the struggle to balance respecting personal testamentary freedoms, as allowed under the 2012 EU regulation, and the French government’s proactive efforts to ensure non-discriminatory practices in inheritance matters. This tension is compounded by the diverse legal traditions and cultural values of the countries involved. On one hand, personal autonomy and freedom of choice in estate planning are strongly valued principles within many legal systems. On the other hand, government interventions aimed at preventing discrimination seek to uphold essential principles of equality and justice within inheritance practices.
Differing Viewpoints
The French inheritance law introduced in 2021 has sparked substantial debate and concern, particularly among foreign couples residing in France or owning property there. One specific provision of the law obligates notaires to notify children about their right to claim a ‘compensatory levy’ if the estate is distributed according to a non-French inheritance law. This requirement has caused significant anxiety among those who had meticulously crafted wills based on the 2012 EU regulation. This regulation allows individuals to choose the inheritance law of their nationality over French law. For many, this new stipulation represents a significant and unwelcome shift, as it disrupts carefully made estate plans. The alteration has raised questions about the long-term impacts on estate planning and property inheritance for non-French nationals in particular, creating a landscape of uncertainty and compelling many to reassess their legal arrangements to accommodate these changes.