The spouse's right to pension

Tue 10 September 2019, Philippe Ropenga

Forced heirship¹ is a well-known limit to testamentary freedom in French law. We will see in this post that the testator's freedom may not only be restricted by forced heirship but also by the spouse's right to pension. Facts of a recent case decided by the French Cour de cassation that is the supreme court that deals with civil, commercial, and criminal cases are simple. This simplicity allows us to move swiftly towards a deeper understanding of French law and to introduce nuances that allow to get a more accurate picture of French law. Regular readers and fans of this blog will certainly not be lost since they will probably recall previous posts as well as Ilott v The Blue Cross.² Please do not refrain your Anglo-Saxon instincts as they will help you to understand French law better from a comparative perspective. Succession law is getting fuzzier. Hence, courts have to dwell into details to achieve a practical result (1). This fuzziness is caused by globally looser family relationships (2).

1 Precise fuzziness

Facts of this case are simple (1.1). The French supreme court has reached a balanced solution (1.2).

1.1 A simple case

A husband left a will providing that his estate should be divided between his two brothers. His wife's share as forced heir has not been discussed in this case.³. The wife was in need and brought a claim under article 767 of the French civil code to receive a pension paid from the estate⁴. Legifrance translation⁵ of §§1 and f. of the said article reads as follows :

"The succession of a deceased spouse owes a pension to a spouse called to the succession who is in need. It must be claimed within one year starting from the death or from the date on which the heirs cease paying the prestations that they were previously making to the spouse. In case of indivision, the period shall be extended until the completion of the partition.

The alimentary pension is levied on the succession. It shall be borne by all the heirs and, in case of insufficiency, by all the particular legatees, in proportion to their benefit."

This provision applies when there is a spouse in need, and when a pension can be paid from the estate. Here, the spouse was in need and there was a net value of 17.611,50 euros. The Court of Appeal noted that the net value of the estate mainly consisted of undivided immovable property rights held by the legatees and that one of them was housing his family in the property. The Court stated that the value of these rights could not be allocated to levy a pension.⁶ It thus decided that the pension could not be paid from the estate. The Cour de cassation had to answer the following question : to determine whether a pension can be paid from the estate according to article 767 of the French civil code, does one have to consider the practicality of the allocation of the net value?

The French supreme court has answered this question in a simple and balanced manner.

1.2 A balanced solution

The Cour de cassation ruled that the Court of Appeal had added a requirement to article 767 and had therefore violated this provision. The reasoning is so simple that it may seem sharp. This interpretation is closer to the letter of article 767, §2 in fine : "It shall be borne by all the heirs and, in case of insufficiency, by all the particular legatees, in proportion to their benefit. The possibility to pay a pension in case of insufficiency would mean nothing in practice if the legatees were not obliged to contribute to the pension of the surviving spouse. It does not mean that a pension has to be levied when there is no positive net value. It means that when there is a positive net value, it has to be allocated to the payment of the surviving spouse's pension notwithstanding any effort that has been made by heirs or legatees. Furthermore, the Cour de cassation guides the practitioner to a balanced solution. Two requirements have to be met by the surviving spouse to receive an alimentary pension paid from the estate :

1. He, or more often she, has to be in need.
2. The net asset value of the estate has to be positive.

There is no room in practice for the interpretation of the second requirement when accounts are beyond dispute. The legal practitioner has then to focus on the first requirement to balance his claims.

It has been seen that a surviving spouse in need could bring a claim to receives an alimentary pension notwithstanding his right to a share as forced heir, nor the testator's wishes. The solution is simple and requires the practitioner to be cautious in case of loose family relationships.

2 Looser relationships

One has to follow a strongly nuanced approach of a case involving looser relationships to insist on aspects of the family context that support his claim (2.1). It helps him to strike the right balance between legal principles (2.2).

2.1 The need for nuance

Practitioners know that their views about a client's family may be far more nuanced than the client's feelings. Furthermore, it often appears that a client's interpretation of his situation does not overlap pieces of evidence nor the views or other people who have seen the deceased from a different perspective. It therefore is useful to rely on legal principles such as forced heirship or fiduciary duty to start building a canvas that will support the practitioner's interpretation of the family context. I have written in an earlier post that Anglo-Saxon trusts lawyers should follow their instincts regarding some matters. A trust practitioner could sense a duty to give better than a lawyer educated in a civil law jurisdiction.⁷ The latter is used to a codified system of obligations and may feel less at ease in cases where several sources of obligation overlap and when one of these sources does not provide a straightforward answer. This happened in this case since a forced heir has brought a claim that was not related to forced heirship but to a right to a pension that was not easy to pay due to the matter's circumstances. It has also been seen a while ago that a request for a reasonable provision restricted testamentary freedom in English law.⁸. In Ilott as in the French case studied in this post, a right to financial support troubles the smooth mechanics of fundamental principles of succession law.

Let us see that these cases highlight the vitality of the principles of succession law.

2.2 The vitality of principles

The need for nuance that has been discussed above does not alter the vitality of principles such as forced heirship or testamentary freedom. Families have changed over time and family relationships are less stable. Legal principles maintain the stability of a legal system. When this stability seems to be an outdated constraint, legal principles are twisted to fit in the new social context. This is how law evolves notwithstanding one's opinions regarding the implications of these social changes. The way in which a practitioner examines a matter largely depends on his education and on his experiences of a given matter. Let us imagine that forced heirship in French law is recodified and becomes a right to a reasonable financial provision similar to what exists in English law. This new forced heirship would certainly be compared to the old one and would be seen by French lawyers as more or less similar to English law. The French practitioner would apply this new institution by determining how the solution that he puts forward should differ from the one he would have suggested before the statutory changes. Hence, forced heirship would remain a key principle in French succession law. Legal culture matters more than ever in what many people call a gobalisation context⁹, and it heavily relies on legal principles. One of the most popular posts on this blog shows how it is possible to combine a fiduciary-like approach with a well-known French legal structure that is widely used for estate-management purposes.¹⁰ It is fairly simple, though not very easy since it relies mainly on legal principles that structure law on each side of the English Channel.

It has been seen that the Anglo-Saxon practitioner should follow his instincts when he examines a French matter of succession involving looser family relationships.

In brief, the surviving spouse can be a hustler in a succession matter and the practitioner can then rely on legal principles to restore the coherence of a messy context.

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