Skip to main content Accessibility help
×
Home
  • Print publication year: 2019
  • Online publication date: November 2019

France: A Chronicle of French Family Law

Summary

INHERITANCE RESERVE AND INTERNATIONAL PUBLIC POLICY

On 27 September 2017, the French Court of Cassation gave two important decisions about inheritance reserve and international public policy. Inheritance reserve is an important concept in French inheritance law. Article 912 of the French Civil code states that:

The reserved portion is that part of the assets and rights of the succession whose devolution, free of charges, legislation assures to certain heirs, called forced heirs, if they are called to the succession and if they accept.

International public policy is a well-known concept in international private law. It allows for the exclusion of foreign law as designated by the French conflict of laws rule, when this law violates the fundamental values of French law.

In recent years, scholars have been wondering whether the inheritance reserve was part of international public policy, especially since the EU ‘successions’ regulation entered into force on 17 August 2015. In this regulation, the conflict of laws rule designates the law of the deceased's last habitual residence, though the deceased may also choose the law applicable to his/her succession. In some common law countries, especially, the law does not contain any inheritance reserve. When the French conflict of laws rule designates the law of a common law country, must the law be ignored if it does not contain an inheritance reserve?

In both decisions of 27 September 2017, the descendants were famous composers: Maurice Jarre and Michel Colombier. Both had lived in France. They had had families and children in France, but later they divorced and moved away to live in California. They married again in this state and had other children. Their estates were composed of movable assets. So, the applicable estate law including any forced share was the Californian one. But the inheritance reserve doesn't exist in California, and the deceased had written wills to transfer their properties to their second wives and to the children from these second families. It was in order to get their inheritance reserve that the children of the first marriages brought their cases before the French judges.

In both cases, the French Court of Cassation affirmed ‘the foreign law, designated by the French conflict of laws rule, is not contrary to the French international public policy’.