Many of my readers may not be interested in long post regarding French law at the moment, especially British ones since the situation in the UK has also caught my attention. Many readers are coming back to see if there is anything new on this blog and, as many have sung after Sonny Bono, The beat goes on. Hence, this post is much shorter than usual and mentions two basic elements that may not be noticed by the foreign practitioner who deals with a succession that has cross-border implications : the opening of a succession and limitation. It is another1 pitfall one may fall into.
According to article 720 of the French civil code, a succession opens at death. The Legifrance2 translation of article 768 of the said code reads as follows:
An heir may accept the succession purely and simply or renounce it. He may also accept the succession to the extent of its net assets when he is called to the succession as either a universal successor or a successor under universal title.
An acceptance or renunciation subject to a condition or a term is null.
Until when can one make a claim regarding a succession? This question is far from easy in French law since different delays apply to different claims. For instance, one distinguishes the option mentioned above from the right of a forced heir to claim that a gift made by the testator is excessive because it exceeds the portion of the estate that is not protected by forced heirship3. Legifrance translation of article 780, §§1 and following of the French civil code reads as follows:
The faculty of the option prescribes4 in ten years counting from the opening of the succession.
The heir who does not make a decision within this delay is reputed to renounce.
As far as reduction is concerned, Legifrance translation of article 921 of the ciivil Code provides that:
Reduction of dispositions inter vivos may be requested only by those for whose benefit legislation establishes the reserve, by their heirs or their assigns: donees, legatees, and creditors of a deceased may not request that reduction or benefit from it.
An action for reduction prescribes in five years counting from the opening of the succession, or in two years counting from the date that the heirs became aware of the impingement on their reserve, but never in excess of ten years counting from the date of death.
Since the option of the heir is a crucial step in French successions, it is good practice to ask a client whether he has been called to the succession and whether he has been given the opportunity to exercise his option. Furthermore, succession regarding foreign assets may take some time, it also is worth noting that the five-year limitation entered into force on 1 January 2007 following the enactment of the 2006 Act related to successions that follows a trend that favours shorter prescriptions and limitations.5 The Cour de cassation, i.e., the supreme court that deals with civil, commercial, and criminal cases has recently ruled that one had thirty years to make a claim regarding the option in a succession matter that opened before 1 January 2007.6
Stay safe and have a peaceful Easter!
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See Beware of appearance. ↩
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As you know from previous posts on forced heirship, a forced heir cannot be deprived of his share. His share cannot be reduced either and there is an action that enables him to make a claim regarding the reduction of excessive donations. See article 844 of the French civil code. ↩
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Legifrance translation refers to "prescription". I prefer to use the word "limitation" because of the extinctive effect of the quoted provisions. ↩
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See loi nº 2006-728 du 23 juin 2006 portant réforme des successions et des libéralités and loi nº 2008-561 du 17 juin 2008 portant réforme de la prescription en matière civile. ↩
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C. Cass., Civ. I, 12 February 2020, 19-11668. ↩