One of the aspects of French law which English couples in a second marriage find most difficult to accept is that, if they buy a property in France and then are unlucky enough to lose their husband or wife, they may find their interests taking second place to those of any children from their first marriage.

In England we usually want the surviving spouse to be well-provided for and to benefit from all the joint assets. Traditionally in France, priority has been given to the children, whether or not they are children of the marriage.

If no action is taken by the couple at the time of purchase, French succession law says that by default, each spouse will own a separate half share of the property and on his or her death his or her own children, whether of the current marriage or of any previous marriage or relationship, must by law receive a fixed proportion of that half share: one half in the case of one child, two thirds in the case of two children and three quarters if there are three or more children. The surviving second spouse will only be entitled to one quarter outright of the deceased spouse’s half share of the house (or of the whole French estate if the couple are French resident); in addition of course to the half share which they already own in their own right.

Clearly this is unlikely to be sufficient to give them future financial security. Fortunately there are things that can be done to improve their position.

First, it is possible by making a French will to extend the outright interest the survivor can take in the estate from one quarter to all of the estate which does not have to go to the children by law: one half if there is one child, and one third if there are two. If there are three or more, it will still be one quarter. The will can also give him or her the right to choose to take either one quarter outright plus a life interest in the other three quarters of the estate, or a life interest in the whole of it.

The obvious disadvantage to this arrangement is that the surviving spouse will be left sharing ownership of the house and possibly other assets with the children, including any step children. For some families this may not be a problem, but this is not a situation which most English people feel secure about.

If it is only a house which is involved, the answer may be to buy it with a tontine clause. The effect of this will be that on the death of the first spouse his or her share will pass automatically to the survivor and will not form part of his or her estate. In this way the children will be by-passed on the first death and will inherit from the survivor. The tontine clause cannot be put into the acte de vente retrospectively so it is important to alert the notaire to your requirements at the time of purchase.

This way of dealing with things does have its own drawbacks, however. The surviving spouse will have to pay French inheritance tax if the value of the half share they inherit exceeds the spouse’s tax free allowance (currently 76,000€ [£51,168]). If this is a consideration, or if you are resident in France and there are other assets to be taken into account as well as the house, you may wish to consider taking advantage of the option offered by the Hague Convention of 14 March 1978 to adopt a French marriage contract of communauté universelle de biens. In this way, assets can be passed to the surviving spouse on the death of the first without any liability for French inheritance tax.

If the French parliament passes the legislation it is currently considering to abolish inheritance tax between husband and wife, this on its own will no longer be a reason for adopting such a contract but the further advantage for a second spouse is that, as with the tontine clause, the assets will not be considered to be part of the estate of the first spouse to die and so the children will not inherit on the death of the first spouse.

Again, unfortunately, there is a drawback. Children of a first marriage have an absolute right to contest the communauté universelle on the grounds that it would deprive them of their inheritance from their parent, and to demand their reserved share of the estate. In these circumstances, the new succession legislation which came into force in France on 1 January 2007 – much heralded as being a step towards acknowledging the changes in society in recent years which make second marriages and families much more common – provides a degree of relief from this.

It allows such children to agree in advance to renounce their right to demand their share of the estate on the death of their parent and to defer receiving it until after the death of the surviving spouse. In this way the surviving spouse will have the security of knowing that he or she can continue during his or her lifetime to enjoy the joint assets, and the children’s future interest in them will continue and can even be protected by a charge over them. The renunciation can relate to the whole or part only of the children’s entitlement, so it could be possible to allow the surviving spouse enjoyment of a particular asset such as the house while the children can inherit other assets in the estate.

This is not the same as renouncing their right to inherit altogether, but the new law does provide for this as well. Previously it was only possible to renounce an interest in an estate after the parent had died. Now it is possible to renounce in advance, during the lifetime of the parent. So the children could renounce their reserved share in whole or in part in favour of the surviving spouse. However, it would seem there are limited circumstances where they would wish to do so, particularly since if they themselves have children the effect of the renunciation would be to benefit their own children.

Not surprisingly, the procedural requirements for either of these forms of renunciation are onerous. The renunciation must be by formal deed drawn up by a notaire and witnessed by two notaires. Each person signing must do so in the presence of the notaires alone and be advised of the adverse consequences for them of the deed they are signing. The renunciation must be made in favour of a named person and is not valid until it is accepted by the testator. However, there are no tax consequences arising from such renunciations, as they are not considered to be gifts.

Another way of benefiting a second spouse in preference to children is to invest liquid assets in an assurance –vie, an insurance contract which allows the investor or investors greater freedom to nominate the beneficiaries of the invested funds on their deaths than they would enjoy if they were left by will and so, if required, a second spouse can be the sole recipient. Advice should always be sought from a suitably qualified financial adviser if considering such an investment.

It should also be remembered that a surviving spouse has the right to continue to occupy the matrimonial home free of charge for a year after the death of the spouse during which time he or she can claim part of their interest in the estate as a right to continue to occupy the property for life. This could be of particular benefit where the rights of a surviving spouse had not been extended by will as described above.

The best way to ensure security for the surviving second spouse will always depend on the individual circumstances of the family concerned and a choice should only be made once all family members have been consulted and proper professional advice has been obtained.

Elizabeth Berry is a solicitor specialising in French law for Prettys Solicitors