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PacisLexis Family Law
International disinheritance lawyer
Disinheriting a child is a complex and often emotionally charged decision that involves navigating intricate legal frameworks. In France, the civil law system imposes strict rules known as forced heirship, which protect children’s inheritance rights and limit parents’ ability to disinherit their offspring.
Conversely, in common law jurisdictions like England, parents enjoy greater testamentary freedom, allowing them to distribute their assets according to their wishes, including the possibility of disinheriting a child.
This article explores the contrasting legal landscapes of French and common law regarding disinheriting a child, highlighting the key legal principles, implications, and considerations involved in each system.
Understanding these differences is crucial for individuals with cross-border estates or familial ties in both jurisdictions, ensuring informed and legally sound estate planning decisions.
international disinheritance lawyer
Disinheriting a child under Common Law (England)
What is the legal framework for inheritance and wills under common law in England?
In England, inheritance and wills are governed by the common law system, which allows individuals to freely dispose of their assets through testamentary documents such as wills and trusts.
The laws surrounding inheritance and wills are primarily found in statutes such as the Wills Act 1837 and the Inheritance (Provision for Family and Dependants) Act 1975.
Can a parent completely disinherit a child in England, and if so, what are the legal requirements?
Yes!
A parent can generally disinherit a child in England, but there are legal requirements to consider.
To disinherit a child completely, the parent must make a clear and valid will that expressly states their intention to exclude the child from inheriting any portion of their estate.
What legal mechanisms are available to disinherit a child under common law, and how do they differ from those in France?
In England, common mechanisms to disinherit a child include drafting a will that expressly excludes the child or making lifetime gifts to other beneficiaries.
These mechanisms differ from those in French law, where forced heirship rules may limit the parent’s ability to disinherit a child completely. It’s called the legal reserve.
To learn more about the legal reserve in France, you ca read the following article:
Are there any restrictions or considerations when disinheriting a child under common law in England?
While there are no specific legal restrictions on disinheriting a child under common law in England, the parent should ensure that their will is clear, unambiguous, and properly executed to minimise the risk of legal disputes.
How do the courts typically handle disputes over inheritance and disinheriting a child under common law in England?
When a child contests their exclusion from a parent’s will, the courts in England will consider various factors, including the parent’s reasons for disinheriting the child, the child’s financial needs and relationship with the parent, and any evidence of coercion or undue influence.
Are there any alternatives to disinheriting a child under common law, such as trusts or lifetime gifts?
Yes!
Alternatives to disinheriting a child under common law in England may include setting up trusts or making lifetime gifts to other beneficiaries.
These alternatives allow the parent to control the distribution of their assets while potentially minimizing the risk of legal disputes.
international disinheritance lawyer
Disinheriting a child under French Law
What are the key differences between the legal systems of common law (England) and civil law (France) regarding inheritance and family law?
The key difference between common law (England) and civil law (France) regarding inheritance and family law lies in the concept of forced heirship.
Under French law, forced heirship rules grant certain family members, including children, a legal right to inherit a portion of the deceased’s estate, whereas common law systems typically prioritise testamentary freedom.
Can a parent disinherit a child under French law, and if so, what are the legal mechanisms for doing so?
No!
In France, the civil code imposes limits upon how much may be left by Will to a particular person and, you are not free to dispose of your Estate as you wish.
Legal reserve compliance:
Definition of legal reserve: your children are called ‘héritiers réservataires’ or reserved heirs in English and have an absolute right to inherit part of your estate (not your spouse). The children inherit from the testator and the testator can’t do anything about it as it’s defined by the French law.
Neither spouses, nor sisters, brothers or parents are considered as reserved heirs.
Reserved heirs are (French civil code number 913-1):
- Children, grandchildren: the reserved portion of the property and assets will vary according to the number of children.
- If there are no children or grandchildren, reserved heirs are:
- Not-divorced surviving spouses. However they can be in competition with third parties and other relatives.
Freely disposable portion:
The reserved portion of the property and assets vary according to the number of children, but once it has been calculated, the remaining portion is freely disposable to the spouse or any other person. If the testator has decided to make gifts and donations beyond the reserved portion, it can be reduced except if the reserved heirs withdraw themselves from the legacy.
To learn more about the inheritance French system and the beneficiaries, please follow the link below:
How does French law handle the rights of forced heirship, and how does this impact the ability to disinherit a child?
Under French law, forced heirship rules grant certain family members, including children, a legal right to inherit a portion of the deceased’s estate.
This may impact the parent’s ability to disinherit a child completely, as the child’s reserved portion of the estate cannot be freely disposed of by the parent.
What are the legal requirements and considerations when disinheriting a child under French law?
In France, there is no law to disinherit a child!
However, there are some mechanisms to disinherit a child only on the freely disposable portion.
It means that you can choose what you want to do with the freely disposable portion and also disinherit a child.
Can you disinherit a child with a life-insurance in France?
Yes but not completely!
The testator or future-deceased individual can subscribe to a life-insurance.
The interest of entering into such a contract is that the sums can be transmitted outside of the estate. Indeed, Article L. 132-13 of the Insurance Code provides that the sums from the life insurance contract do not form part of the estate when the beneficiary of said contract passes away.
Thus, the life insurance contract allows for a reduction in the amount of the estate. Since the capital that will be paid out upon the death of the insured does not enter into the insured’s succession, the sums will therefore not be subject to the rules of inclusion in the succession, nor to those of reduction for encroachment upon the reserved portion of the heirs. The reserved portion of the heirs is thereby reduced.
However, the subscriber must be vigilant: reserved heirs could request the requalification of the life insurance contract as a donation. In this case, the sums would be reintegrated into the estate.
Is there anything you can do to disinherit a child in France?
Yes!
You have to move and live abroad!
England or United Kingdom, as the US, Canada do not have the reserved legal portion.
How do French courts approach disputes over inheritance and disinheriting a child, and what legal remedies are available to aggrieved parties?
In cases where a child contests their exclusion from a parent’s will under French law, the courts will consider various factors, including the parent’s reasons for disinheriting the child, the child’s legal rights as a forced heir, and any evidence of coercion or undue influence.
Legal remedies available to aggrieved parties may include challenging the validity of the will or claiming their legal share of the estate as a reserved heir.
international disinheritance lawyer
Comparative analysis of disinhereting a child
What are the main similarities and differences between the legal frameworks for disinheriting a child under common law (England) and French law?
The main similarity between the legal frameworks for disinheriting a child under common law (England) and French law is that both systems allow individuals to make wills and dispose of their assets according to their wishes.
However, the key difference lies in the concept of forced heirship in French law, which grants certain family members, including children, a legal right to inherit a portion of the deceased’s estate, whereas common law systems typically prioritize testamentary freedom.
How do the concepts of testamentary freedom and forced heirship influence the ability to disinherit a child in each legal system?
Testamentary freedom in common law systems such as England allows individuals to freely dispose of their assets through wills and trusts, with few legal restrictions on disinheriting a child.
In contrast, forced heirship rules in civil law systems such as France grant certain family members, including children, a reserved portion of the deceased’s estate, which may restrict the parent’s ability to disinherit a child completely.
What factors should parents consider when deciding whether to disinherit a child under common law or French law?
When deciding whether to disinherit a child under common law or French law, parents should consider their legal rights and obligations, the potential implications of forced heirship rules, the relationship with the child, and the likelihood of legal challenges or disputes over the inheritance.
How do cultural and societal norms influence attitudes towards inheritance and disinheriting a child in England and France?
Cultural and societal norms may influence attitudes towards inheritance and disinheriting a child in England and France, with common law systems generally valuing testamentary freedom and individual autonomy, while civil law systems prioritize family solidarity and protection of heirs’ rights.
What are the implications of choosing one legal system over the other for estate planning and family relationships?
The implications of choosing one legal system over the other for estate planning and family relationships include considerations such as the ability to freely dispose of assets, the potential for legal challenges or disputes, and the impact on family dynamics and relationships.
Are there any practical or procedural differences in the process of disinheriting a child under common law (England) compared to French law?
Yes!
There are practical and procedural differences in the process of disinheriting a child under common law (England) compared to French law, including differences in the legal requirements for drafting wills, the treatment of forced heirship rules, and the potential for legal challenges or disputes.
international disinheritance lawyer
Disinheriting a spouse
Can you cut your spouse out of your will in France?
Yes!
Compared to a child, you can cut your spouse out of your will. Moreover, a spouse is not necessary a beneficiary especially with a divorce. If you’re divorced, you can not be neither a beneficiary nor a reserved heir.
If you’re in a civil relationship or cohabiting couples, only a will can make you a beneficiary.
If you’re married with no children, you can be a reserved heir and cannot be cut out.
Can you cut your spouse out of your will in England?
Yes!
However, there is a chance that they may still be able to challenge your will.
In France, with children, what are your rights upon your spouse’s death?
You’re not a reserved heir with children.
In such situations, without a will, you can only get the usufruct of the property and one quarter in bare ownership.
What is usufruct?
Usufruct is a civil law term referring to right of an individual to use and enjoy the property that is vested in another.
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Our articles about legacy
Lifetime gifts
In France there are 2 types of lifetime gifts:
– ‘la donation simple’: in France, ‘la donation simple’ or lifetime gift is any gift that you give away to another person whilst you are still alive . A gift is a transfer of anything such as item, property or money.
The individual can be an heir, a friend or a charity. Please note that if the individual is an heir, the gift(s) that you have made can still make up part of the value of your estate and either can be challenged by the other beneficiaries or heirs and taxed.
International inheritance
Definition
International inheritance
Inheritance is the process by which the ownership of a deceased person’s property and assets (testator) is transferred to their heirs.
When it comes to legacy and the share of assets, as each country has its own laws and regulations, international inheritance requires legal advice.
Will – testament
Definition:
A will is a legal document in which a person (called the testator) declares their intention as to what should happen to their money and property after their death. A will can be updated or removed until the testator death.