Restrictions on the freedom to dispose of one’s succession by will (reserved portion).
Last update: 10/2/2012
Under French law, only the deceased’s descendants (children, grandchildren, etc. provided that they qualify by their rank) and spouse are entitled to a reserved portion. Ascendants and collateral relatives do not have rights to reserved portions.
These reserved portions which limit the testator’s right to dispose freely of his/her estate in the form of a will, cannot exceed 3/4 of the estate. Forced heirs cannot renounce the reserved portion (unless they renounce the succession). On the other had, they can waive an action in abatement against excessive donations beforehand.
Is there a reserved portion set aside for heirs? What percentage of the estate does this reserved portion represent? What is its legal nature?
There are heirs who can assert their right to a portion of the estate which legally devolves upon them (article 721 of the Civil Code, article 912 of the Civil Code). This portion is known as the “reserved portion”.
There is a reserved portion for the deceased’s children and a reserved portion for the surviving spouse. Ascendants and collateral relatives are not forced heirs.
The reserved portion of the children: the reserved portion is half if the deceased leaves only one child at the time of his/her death. It is 2/3 if he/she leaves two children and 3/4 if he/she leaves three or more children (article 913 of the Civil Code).
The reserved portion of the surviving spouse: the surviving spouse’s reserved portion is a quarter of the estate (article 914-1 of the Civil Code). It exists only where there are neither descendants nor ascendants and for all successions opened from 1st July 2002.
What is the procedure to be followed to assert a right to the reserved portion? What deadlines are in place?
This involves an action in abatement. If a direct or indirect gift interferes with the reserved portion of one or more heirs, the gift may be deducted from the available portion (article 920 of the Civil Code).
Such an action may only be instituted by forced heirs within a period of 5 years after the opening of the succession or within 2 years after the date of discovery of the infringement (article 921 of the Civil Code).
Any forced heir of adult age may renounce in advance his/her right to institute an action in abatement (article 929 of the Civil Code). This renunciation must be recorded in a deed executed before two notaries. It is signed separately by each party waiving his/her rights in this regard in the presence of only the two notaries. It must indicate precisely the future legal consequences for each party waiving his/her rights.
Is it possible to renounce the reserved portion?
Under French law, heirs can only renounce the reserved portion if they renounce the whole of the succession. On the other hand, they can waive their right to institute an action in abatement (article 929 of the Civil Code).
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Successions in France
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