Owning property or assets in France brings a layer of legal complexity that most people only discover at the wrong moment. When it comes to inheritance, France does not simply defer to what your Will says. A separate body of law governs who can inherit French assets, and if your Will has not been drafted with that in mind, the people you intended to benefit may not receive what you planned.
The EU Succession Regulation, known as Brussels IV, gives UK nationals a mechanism to address this directly. Understanding how it works, and whether your current Will uses it properly, could make a significant difference to the outcome for your family.
What Brussels IV does
The EU Succession Regulation, formally Regulation (EU) No. 650/2012, came into force in August 2015. Its purpose was to bring consistency to cross-border estate administration across EU member states, by establishing a clear rule for which country’s succession law applies when someone dies with assets in more than one country.
The default rule is straightforward. The law of the country where you were habitually resident at the time of your death governs your estate as a whole. However, the regulation also gives individuals the option to elect, during their lifetime, that the law of their nationality applies instead. For a British national, that means English and Welsh law, can be chosen to govern not only assets held in the UK but assets held in France and other EU member states as well.
That election must be made expressly in your Will. It does not happen automatically, and a Will drafted without cross-border planning in mind is likely to be silent on the point entirely.
Why Brexit has not changed this
It is a reasonable assumption that leaving the EU removed UK nationals from the reach of European regulations. In the case of Brussels IV, that is not what happened. The regulation was never adopted by the UK in the first place, and Brexit has not altered its effect on British nationals with assets in Europe. If your estate includes assets in an EU member state, Brussels IV continues to apply.
The UK’s position outside the regulation is not without its advantages. Because the UK did not opt in, EU member states do not generally use Brussels IV to impose their own succession laws on UK-based assets. At the same time, UK nationals can still invoke the regulation to elect English law over their French or other European assets. It is a position that offers genuine flexibility, but one that only delivers results if it is properly exercised through a carefully drafted Will.
How French and English succession law differ
To appreciate what is at stake, it is important to understand how differently the two legal systems approach inheritance.
In England and Wales, you have what lawyers call testamentary freedom. Subject to certain limited rights of challenge, you can leave your estate to whoever you choose. A spouse, children from any relationship, a close friend, a charity: your Will reflects your intentions and the law broadly respects them.
France operates under an entirely different principle. French law contains a concept known as the réserve héréditaire, or forced heirship, which gives biological and adopted children a legally guaranteed right to a minimum share of the estate, regardless of what any Will says. One child is entitled to half the estate. Two children share two thirds between them. Three or more children share three quarters. The remaining portion, the quotité disponible, is all that the deceased is free to leave as they chose.
The practical consequences of this can be severe, particularly for blended families. Step-children have no automatic rights under the French forced heirship rules. A person who intended their French property to pass to a step-child, or entirely to a surviving spouse, may find that biological children from an earlier relationship are legally entitled to the majority of it. These are not edge cases. They are outcomes that arise in estates where no cross-border planning has been done, and they can leave families in serious dispute at the worst possible time.
Making a choice of law in your Will
Brussels IV gives you the right to elect that English law governs the succession of your entire estate, including land and buildings situated in France. To achieve this, an express declaration must be included in your Will. Without it, there is a real risk that French succession rules, including forced heirship, could be argued to apply to your French property, or that the position becomes contested and expensive to resolve.
The case for making an express election, rather than relying on the default habitual residence rule, is largely about certainty. Your habitual residence at the time of death is not always a straightforward question, particularly if your life spans two countries. If you spend significant time in France, are considering relocating there in later life, or simply cannot predict where you will be living when you die, relying on habitual residence to determine which law applies introduces a degree of uncertainty that an express election removes entirely.
The 2021 French law change and why it matters
In November 2021, France amended its Civil Code in a way that added a further complication, even for estates where a Brussels IV election is already in place. The amendment introduced a right known as the droit de prélèvement compensatoire, which allows children who would not receive their reserved share under the foreign law applied to an estate to claim that shortfall from assets physically located in France.
This provision is triggered where the deceased, or at least one of their children, was at the time of death a national or habitual resident of an EU member state, and where the foreign law governing the estate does not include an equivalent mechanism for protecting children’s inheritance rights. For a British national who lives in England and whose children also live in England, the amendment is unlikely to affect their estate. The EU connection is the critical factor.
However, if you are a UK national who has moved to France, or if you hold dual nationality with an EU country (think of the flurry of applications for Irish citizenship following Brexit) or if any of your children are EU nationals or habitually resident in an EU country, a Brussels IV election alone may no longer be sufficient to protect the outcome you intended. In those circumstances, specialist advice is not optional.
It is also worth knowing that the 2021 amendment is being challenged at EU level on the grounds that it may be incompatible with Brussels IV itself. The legal position is not fully resolved, and this remains an area where the ground could shift. It is one of the stronger arguments for keeping any Will with a cross-border dimension under active review rather than treating it as something that can be drafted once and forgotten.
Whether to have a separate French Will
A single English Will containing a properly drafted Brussels IV election can be legally effective. Even so, there are practical reasons why many people with French assets also hold a separate Will in France to cover those assets specifically. There is no one size fits all answer to this question and specialist advice needs to be sought to discuss pros and cons of each option. But where two Wills exist, it is essential that neither accidentally revokes the other and that their terms do not pull in different directions. That requires your English solicitor and a suitably qualified French lawyer to be working with full knowledge of both documents from the outset. If you currently have two Wills and in particular if you made those Wills at different times, it is important to check that those two Wills work together as intended, to avoid any surprise on death.
Other French assets worth considering
Property tends to dominate these conversations, but the regulation and French succession rules can affect a wider range of assets than most people appreciate. French bank accounts, savings and investment portfolios, shares in French companies, and interests in French business structures can all be relevant. The forced heirship rules apply to a person’s worldwide estate if they were domiciled in France at the time of death, and to French immoveable property if they were domiciled outside France. The position across different asset types can be nuanced, and a thorough review of everything with a French connection is the right foundation for any planning conversation.
Reviewing your position
If France features in your financial or family life in any meaningful way, the question of whether your Will is properly drafted for that reality is one worth answering sooner rather than later.
Wills written before August 2015 almost certainly contain no Brussels IV election, because the regulation was not yet in force when they were drafted. These need attention as a priority. Equally, if your Will already contains an election but has not been reviewed since 2021, the French law change may have affected your position in ways that are worth understanding. And if your family circumstances have changed, through remarriage, new children, or a move abroad, a Will that was once fit for purpose may no longer reflect what you actually want or what the law will allow.
Getting this right protects your wishes, gives your family clarity, and removes the risk of a dispute arising at the point when they are least equipped to deal with one. Our private client team has considerable experience advising on cross-border estate planning and international Wills, and we would be glad to talk through your arrangements with you.
It should be highlighted that the Brussels IV election does not affect matters of inheritance tax, and advice should also be obtained as to the inheritance tax consequences of the wishes expressed in your Will, whether or not it includes a choice of law.
