Readers who already own or who are planning to purchase property in France are likely to be aware that French succession law gives rights to certain members of a deceased’s family, in particular his or her children, who are known as the héritiers réservataires. The rights of these children cannot be overridden simply by making a will which purports to leave the deceased’s property to someone else.

Nevertheless there will be cases where an individual wishes to pass property to persons other than these protected heirs – for example to a surviving spouse in preference to the children or to one or more children in preference to others. He may attempt to do this either by making a lifetime gift (a donation entre vifs) or by a testamentary disposition such as a will or, in the case of a spouse, a donation entre époux also known as a donation au dernier vivant. These gifts are known as libéralités. However when the donor or testator attempts to give away more than the quotité disponible or disposable portion of his estate, whether during his lifetime or on his death, the héritiers réservataires retain a right known as an action en reduction to claim their réserve – that share of the estate to which they are entitled under French succession law. This is the case even where this would entail ‘clawing back’ gifts which the deceased had made during his lifetime.

Changes since 2007

Until the beginning of last year even those heirs who were quite willing to forego their rights were not able to do so until the donor or testator in question actually died. Since January 2007, however, an héritier réservataire may make a renonciation anticipée of the right to the claim their portion of the estate where there is a libéralité in favour of a third party.

In order for the renonciation anticipée to be valid there are strict requirements which must be complied with. The renunciation must be contained in an acte authentique, that is a notarised deed, which must be signed in the presence of not one but two notaires, one of whom must be independently appointed by the chambre des notaires for the relevant area. Where more than one heir is renouncing his or her rights each must sign separately in the presence only of the two notaires. This is to avoid the risk of duress or undue influence being exerted on the person renouncing.

The renunciation can only be made in favour of one or more designated persons. A renunciation made without the designation of a beneficiary will not be valid. It must be stressed that what the heir (the renonçant) is renouncing is the action en réduction and not the reserved share of the estate (the réserve) to which he is entitled under French law. Therefore if the person whose estate he is renouncing fails to make the necessary libéralité the renunciation will have no effect.

As an example, Adam is married to Anna and they have one son Ben. Ben signs a renonciation anticipée in Adam’s estate in favour of Anna. However Adam fails to make a will or donation entre époux in favour of Anna so on Adam’s death Ben’s renonciation will have no effect and he will still be entitled to half of Adam’s estate. If Adam had made a will leaving all of his estate to Anna then Ben’s renonciation would have allowed all of the estate to pass to Anna on Adam’s death.

The renonçant may renounce his rights to all or only part of the estate. For example in the above case Ben could have renounced his right to half of his réserve in Adam’s estate or to a particular asset such as the family home.

The renunciation must be freely given and therefore there can be no consideration or payment made to the renonçant in return for his renouncing his rights.

Becoming effective

The renonciation becomes effective once it has been accepted by the person in whose estate it applies. Once in place the renonciation may only be rescinded in very limited circumstances and by application to the court. It is effective not just against the renonçant but against his children, meaning that if the renonçant were to predecease the person in whose estate he has renounced, his children – who would normally have inherited in his stead – cannot exercise their right to the action en réduction.

From a tax point of view the rénonciation anticipée is not treated as a libéralité and therefore it is not taxed as though the renonçant had made a gift to the beneficiary.

If a renonciation anticipée has not been made an heir may still renounce his rights to the action en réduction once the donor or testator has died. In many cases such a renunciation is made tacitly, that is the heir simply fails to exercise his right to require that a libéralité made in a will or donation is reduced.

In addition any heir in an estate may choose to renounce their rights in that estate. This is one of the options available to the heirs in a succession and it differs from the renunciation of the action en réduction in that there is no requirement to renounce in favour of a defined beneficiary. The renouncing heir will be treated as never having been an heir and will have no rights to the assets of the deceased or any liability for the debts (other than the right to personal mementos of the deceased and a liability to contribute to the funeral costs).

Where the succession passes in the direct line or the collateral line (ie to siblings and then to nieces and nephews of the deceased) the grandchildren or the nieces and nephews have the right to representation. Therefore if the son of the deceased renounces his rights, his share of the estate may pass to his own children in the same way as it would if he had predeceased.

Finally the renouncing heir may change his mind about the renunciation but only if no other heir has accepted the estate in the meantime. If the renouncing heir chooses to accept the estate in this situation he must fully accept all the assets and liabilities of the estate.