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The Impact of European Private International Law and the Réserve Héréditaire in France

Published online by Cambridge University Press:  25 May 2021

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Summary

Whether the réserve héréditaire (forced heirship or hereditary reserve pursuant to French inheritance law) is part of French international ordre public, and therefore falls within the scope of the public policy exception, has been the cause of a major doctrinal debate in France. While traditionally the answer was yes, contemporary evolution of French international inheritance law provides for a much more nuanced response. French law is indeed strongly influenced by European and international trends strengthening the protection of the deceased‘s last wishes, and more generally providing for a wider role attributed to party autonomy, especially within the context of estate planning. Therefore, the place of forced heirship under French law in the context of international successions, especially when immovable property is located in France, is largely circumscribed in current French law. The Rome IV Regulation significantly reduces the scope of the rules relating to forced heirship by stating that ‘provisions providing for a reserved share of the estate greater than that provided for in the law applicable to the succession under this Regulation may [not] be regarded as constituting special rules imposing restrictions concerning or affecting the succession in respect of certain assets‘ and by authorising the possibility to choose the law applicable to the succession (professio juris, even though this choice is limited). However, French law did not wait until the application of the Rome IV Regulation, and the interaction and mutual influence between foreign, European or international reforms and the evolution of domestic law was particularly salient in the field of French inheritance law. The levy established by the Law of 14 July 1819, which guaranteed a form of priority to French heirs over estates owned in France to protect the réserve héréditaire, was indeed abandoned when the law of 1819 was repealed in 2011 by a decision of the Constitutional Council in the name of the principle of equality. And in the 2017 Colombier and Jarre cases, the Court of Cassation has defined the public policy for international successions in a restrictive way, deciding that:

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Publisher: Intersentia
Print publication year: 2021

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