My late husband’s UK Will left everything to me, then to our children, do I inherit his French house?

Question

“My late husband’s UK Will left everything to me, then to our children, do I inherit his French house?”

Answer:

It sounds as though you and your husband have children from your relationship only, and no other bloodline nor adopted children. If your husband left a standard UK Will leaving all to surviving spouse on the first death, and then to the children on the second death, then it might be possible that you inherit all of his French estate, or it might be the case that the children have rights to part of the French estate together with you.

I will assume here that your husband died after 17 August 2015, the date from which the EU Succession Regulation came into effect.

The EU Succession Regulation allows a testator to elect the law of their nationality to apply to their estate, including assets in France. This means that where there has been a valid election of English law in a valid Will, then a gift to spouse under the Will would take full effect, even in the presence of children. It allows the surviving spouse to inherit everything in accordance with the Will.

However, what if your husband made his Will prior to 17 August 2015, and did not know about the possibility to elect English law? In that case, there are transitory provisions in the EU regulation to allow for a Will that predates the EU Regulation. This allows a pre 17 August 2015 Will to be deemed to have elected English law if it is apparent that the Testator would have done so, or intended to do so, had it been possible.

A typical example of this is where legal language that is specific to English law appears in the Will which would not be usual in French law, from that, it can be inferred that English law would have been intended to apply.

Conversely, if the Will was dated after 17 August 2015, then in order to elect the law of the testator’s nationality there would need to be an express election of law of nationality in the Will if this is what was intended. Without such an election of law, it is considered that the lack of an election of law was deliberate. In that scenario, the children would be entitled to a share of the inheritance, together with the surviving spouse under the French rules of reserved heirs.

Where there is a Will then the French rules of reserved heirs still reserve part of the estate for children, as follows: If there is one child, the child is entitled to half of the estate. If there are two children, they are entitled to a third each (two thirds between them); If there are three or more children, they are entitled to three quarters between them. The surviving spouse is entitled to whatever is left.

The spouse would then have the option of:

• the remaining part share of the estate in full ownership; or

• a 100% life interest (with the children taking the underlying legal ownership); or

• a combination of the two (three quarters life interest plus part in full ownership)

Please note that some Notaires only note an election of law where there is an obvious express election of law. Not all Notaires seem to be aware of the possibility of an implied election of law where the Will pre-dates the EU Succession Regulation of 17 August 2015. We are able to contact them on your behalf to explain this in order to safeguard your intended inheritance rights as surviving spouse, and point out the relevant legal citations to support this.

John Kitching

Director

French Law Consultancy Limited